Future Receivables

• Applicant: Dr. Florian Eichel
• Subject Area: Private Law
• Term: from 2014 to 2015
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 265173563

Future receivables signify a person¿s expectations of becoming entitled to claim something from someone else in future time. An example would be a salesman who may assume today that he will once claim money out of sales with future customers. These future receivables may already be secured by mortgages or can serve as security themselves when, for instance, the salesman assigns all his future claims to his bank in order to get a loan. This is why future receivables are somehow already existent in the present. They involve different areas of law, like the laws of obligations, property, procedure, enforcement or bankruptcy, and therefore they do not only combine present and future but they also touch both, substantive as well as procedural law, each of which faces different challenges. Looking closer at the law of future receivables, an important contradiction can be revealed. On the one hand, the German private law mentions future claims in various provisions like in sections 562, 592, 883, 1113, 1179, 1204, 1209, 1986 of the Civil Code (BGB), sections 844, 916 of the Code of Civil Procedure (ZPO) or sections 95, 191 of the Insolvency Code (InsO). On the other hand, until today there is no common notion of what ¿future receivables¿ legally are; important German law books, although dealing thoroughly with the elements of a receivable which is already completed, do not provide a definition of future receivables. Thus in more than 100 years of intensive legal practice, significantly different cases have been treated the same way whereas diverse answers have been found to questions which would have required a uniform solution. This lack of coherence is also shown by the German Federal Court (BGH) who, for example, argues that the transfer of future claims requires the completion of the later claim (BGH, NZI 2010, 443) although, in a different field of law, the BGH argues exactly to the contrary (BGH, NZI 2009, 888). By doing so, the BGH apparently tries to refer to fundamental structures in order to gain arguments, but does not find any. For this reason, there is still today a necessity to look on future receivables from a multi-tiered private-law perspective in order to find out whether there is, after all, a common notion of a future receivable underlying all different areas of law. This gap in jurisprudence shall be filled by this treatise. After a thorough, historical, systematic, and teleological analysis of the different provisions, which form the law of future receivables, the treatise presents a fundamental framework, which describes the future receivable as a peculiar and present phenomenon of law. This framework can help finding answers for future problems or legislative projects, and may also provide answers to questions arising in a future European-Private-Law context.

• DFG Programme: Publication Grants