Debit order procedure

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The debiting (contract) process is in addition to the direct debit method is one of two direct debit process within the framework of the German non-cash payments , which since February 1, 2014 SEPA Direct Debit is only applicable if none of the parties consumer is.

General

Participants in both direct debit procedures are the creditor as the payee , his account-keeping bank as the first collection agency , the debtor is the payer , and his account-keeping institute is the paying agent .

The creation of the European Payments Area (SEPA) also affects the national German direct debit procedure. The SEPA direct debit procedure has existed since November 2009, which also affects the two German direct debit types. The dates for the termination of the national payment systems result from the EU regulation No. 260/2012; accordingly, the national direct debits have been switched off together with the national transfer since February 1, 2014. On March 21, 2014, an amending ordinance came into force, which - retrospectively from January 31, 2014, per transitional provision - allowed payment service providers to carry out payment transactions in euros , the format of which does not comply with the provisions of this ordinance for transfers and direct debits (which include the use of the International bank account number (IBAN) as an identifier for payment accounts ), to continue processing until August 1, 2014. Since then, all paperless payment transactions have been switched to SEPA.

With the debit order procedure, the payer instructs his account-keeping paying agent to redeem the direct debit amount by debiting his account. The direct debit order procedure therefore requires a declaration of intent from the customer to his account-keeping bank. With this, the customer issues his account-holding bank (paying agent) the direct debit order for instructions in accordance with § 675 Paragraph 1, § 665 BGB to redeem the named direct debit amount to the creditor.

The direct debit order procedure differs significantly from the direct debit authorization procedure in two respects.

  • The debit of the customer account is binding on the debtor due to the legally binding nature of the instruction and establishes a secure legal claim for the payee to dispose of the payment amount in the cover relationship .
  • An approval of the account debit by the customer to his bank is no longer required due to his instructions.

SEPA B2B direct debit

The corporate direct debit ( SEPA Business to Business Direct Debit ) takes the needs of business customers into account and is similar to the earlier direct debit procedure . One-off, first-time or subsequent direct debits must be received by the paying agent one day before the due date in accordance with the SEPA regulations for SEPA B2B direct debits. Since the SEPA B2B direct debit can only be used by customers who are not consumers, the right to reimbursement under Section 675x (1) BGB may be waived for this type of procedure ( Section 675e (4) BGB in conjunction with Section D. No. 2.1 1 special conditions at the end).

The corporate direct debit procedure is an additional offer for companies to facilitate their business transactions. Existing direct debit orders had to be renewed by February 1, 2014 with a SEPA mandate. Up until this point in time, the payer and the payee had to agree whether to choose a SEPA core direct debit or a SEPA corporate direct debit. While the previous direct debit order was due on sight, a due date is given for the corporate direct debit. The SEPA B2B direct debit mandate replaces the previous direct debit order and is the legal requirement for collecting a claim by direct debit. The direct debit mandate forms the contractual basis between the payee and the debtor. With his signature on the mandate, the debtor gives the payee permission to irrevocably collect a claim . The original mandate is kept by the payee; a copy must be submitted to the paying agent. The debtor's bank must check the mandate each time the account is debited. The mandate expires automatically if no direct debit has been collected 36 months after signing. This period starts again after each move.

Validity of the SEPA direct debit scheme

SEPA direct debits are available throughout the European Payments Area (SEPA). This includes all 28 members of the European Union (including the French overseas departments of Guadeloupe , French Guiana , Martinique , Réunion , Mayotte (since March 31, 2011) and Saint-Pierre and Miquelon , the Canary Islands belonging to Spain , the exclaves Ceuta and Melilla and the Portuguese islands of Azores and Madeira ). The European Payments Area also includes Switzerland , Monaco and San Marino , as well as the three other countries of the European Economic Area Iceland , Liechtenstein and Norway . For the non-EEA members Switzerland, Monaco and San Marino, however, the special situation applies that they are bound to the SEPA regulations, but not to the EU regulations and EU directives. Since July 1, 2013, Croatia has also been a new member of the European Union .

The British Channel Islands Jersey and Guernsey , the Isle of Man , the Danish Faroe Islands and Greenland do not belong to the European Payments Area . Furthermore, although they use the euro as their national currency, participating countries are not Kosovo and Montenegro or the small states of Andorra and Vatican City , but the dependent areas Gibraltar and Saint-Pierre and Miquelon are .

There are other payment habits outside of the European payment area. In the US, payments are made through three main payment instruments, namely cash, check, and credit card. The share of check payments in all cashless transactions fell in the USA from 32% (2006) to 22.5% (2009), while the share of debit card payments from 26.3% (2006) to 34.8% (2009) increased; the credit card share remained at around 20%. In 2006 , the debit card replaced the check as the most widely used cashless payment method in the USA. Overall, credit and debit card payments, automated clearing house (ACH) payments and electronic benefit transfers (EBT) accounted for around two thirds of all cashless payments.

Legal issues

In the case of SEPA direct debits, the material and legal provisions of the payment service law (§ § 675 ff. BGB ) and formally the special terms and conditions for direct debits apply . Between the banks , the direct debit agreement is to be applied, which legal effects only between the affiliated banks. The direct debit order is defined here as “a written order issued to the paying agent by the debtor for the benefit of the payee” (Section I No. 1 b) direct debit agreement). The literature subsumes the debit order under the definition of the payment order according to § 675f Paragraph 3 Clause 2 BGB and does not see it primarily as a declaration of authorization in the sense of § 675j BGB, even if it is issued for several consecutive payments. The direct debit order can be derived from Section 675f Paragraph 3 Clause 2 BGB and Section 675u BGB, according to which the bank should redeem direct debits from certain creditors. Participation in the direct debit procedure only takes place when the debtor issues a direct debit to his paying agent in accordance with No. 2.2.1 of the special conditions. The direct debit order is therefore an authorized payment transaction (Section 675j Paragraph 2 Sentence 2 BGB). With the direct debit order, the debtor who is liable to pay gives the paying agent instructions to pay the direct debit amount to the payee. For the direct debit order procedure, § 675x BGB applies. With § 675x BGB cases are recorded in which the debtor gives the payee a direct debit authorization.

The SEPA B2B direct debit procedure is based on a prior authorization from the paying agent and is customary in business relationships . The debtor does not need to approve his paying agent if he has issued a direct debit order in favor of a creditor. Because this also includes the pre-authorization of the payment collection by the creditor. With this form of direct debit, the fulfillment of the claim in the currency relation occurs earlier than with the direct debit authorization procedure.

Change of terms and conditions

The amendments to the General Terms and Conditions that came into effect on July 9, 2012 do not include the direct debit orders issued in the direct debit procedure. This means that it was necessary to obtain a new SEPA B2B direct debit mandate. Therefore, the payee and the debtor had to agree to use either the SEPA basic or the SEPA business-to-business direct debit scheme. A corresponding direct debit mandate had to be obtained from the payer.

Fulfillment

According to the principles of the fulfillment of a monetary debt , the claim on which the direct debit is based is only fulfilled with unconditional credit to the account of the payee - with a condition for dissolution . With an unconditional credit, the payee obtains the necessary unrestricted power of disposal over the payment amount. There are no changes in the collection relationship between the creditor and his bank in the SEPA procedure. The account debit made by redeeming a direct debit in the direct debit order procedure can generally no longer be reversed. According to No. 2.4.2 of the "Special Conditions", direct debit orders are deemed to have been redeemed if the debit entry on the account of the payer has not been canceled no later than the second banking day after it was made. In the case of the collection of the claim by direct debit, the debtor does not effect the originally owed cash payment with the account credit, but instead gives the creditor a claim for payment against his first collection agency. Such a legal contractual performance agreement can be subject to a dissolving condition, so that the legal consequence of performance does not apply in the event that the condition occurs. The debtor has done what is necessary from his point of view to fulfill if he ensures that there is sufficient funds on his account in the direct debit procedure.

revocation

In the case of company direct debits , the right of revocation under Section 675j Paragraph 2 BGB in conjunction with Section 675e Paragraph 4 BGB can be excluded, with the consequence that a direct debit debited from the payer's account is not possible. In No. 2.2.2 of the special conditions, however, it is regarded as a rule that the direct debit order is issued in a revocable manner. With the SEPA B2B direct debit, there is no possibility of contradicting the direct debit, as the paying agent is obliged to check the mandate data for compliance with the payment in hand before the debit. If the possibility of revocation is not excluded, the payment instruction issued by the payer to his paying agent with a direct debit order is revocable for the payer until the debit order is sent by the payee to the paying agent - or if a due date has been agreed - until the end of the business day before the agreed due date (§ § 675j Abs. 2, § 675p BGB).

With the direct debit procedure, the debit of the payer's account becomes effective when the direct debit is redeemed by the paying agent. This is because the order is executed and the payer's authority to revoke the debit order ends. The direct debit is redeemed when the debtor account is debited, provided that this expresses the willingness of the paying agent to redeem it. This can be assumed if the paying agent has checked the requirements for the direct debit before making the posting (pre-planning). A different situation can apply if the check is only carried out after the (automated) debit posting (subsequent disposition).

Direct debit return

According to No. 9, Paragraph 1 of the General Terms and Conditions of Banks, the direct debits submitted by the payee are credited before they are redeemed, subject to their redemption (“ reserved ”). If checks or direct debits are not redeemed after this, the bank may reverse the reserved credits even after the invoice has been closed (cancellation). Direct debits and checks are deemed to have been cashed if the debit is not reversed no later than the second bank working day after the debit entry (No. 9 (2) General Terms and Conditions banks).

A direct debit that has not been redeemed is known as a direct debit return. According to a procedure defined in the direct debit agreement, it is calculated back between the banks involved, debited from the account of the payee and credited back to the account of the debtor. Reasons for returning a direct debit are for example:

  • The direct debit account does not have any funds , which means that there is neither sufficient credit nor an adequate credit line in the account .
  • The specified account does not exist or has been closed.
  • There is no direct debit order.

The payee is usually informed of the reason for a returned direct debit, for example if the direct debit is not executed due to insufficient funds, with the note “presented and not paid”.

Individual evidence

  1. ↑ Regulation (EU) No. 260/2012 of the European Parliament and of the Council of March 14, 2012 laying down the technical regulations and business requirements for credit transfers and direct debits in euros and amending Regulation (EC) No. 924/2009 in the Consolidated version of January 31, 2014 , accessed on August 5, 2017 ( Official Journal of the European Union L 94 of March 30, 2012, pp. 22–37 and L 84 of March 20, 2014, pp. 1–3).
  2. ^ Gerd Nobbe : Problems of the direct debit procedure, especially in the insolvency of the debtor. World Cup 2009, 1537.
  3. ^ BGH, judgment of May 29, 2008, Az .: III ZR 330/07.
  4. ↑ BGH, judgment of May 29, 2008, Az .: III ZR 330/07, marginal number 17.
  5. ↑ EPC List of SEPA Countries as of July 3, 2013
  6. ↑ Olaf Grube: The allocation of risks in the US credit card process . 2006, ISBN 3-89971-289-7 , pp. 27 ( limited preview in Google Book search).
  7. ↑ Federal Reserve System, The 2010 Federal Reserve Payments Study , April 2011, p. 11 ( Memento of March 22, 2016 in the Internet Archive )
  8. ^ Yvonne D. Jones: Check 21 Act . 2009, ISBN 978-1-4379-1143-5 , pp. 12 (English, limited preview in Google Book Search).
  9. ↑ Direct debit agreement from July 2012
  10. ↑ BGH WM 1989, 520, 521
  11. ↑ Alexandru Petrescu: Direct debit in Germany, Romania and the EU . 2013, ISBN 978-3-11-031247-8 , pp. 23 ( limited preview in Google Book search).
  12. ↑ BGH WM 2010, 1275
  13. ↑ Bundestag printed matter No. 16/11643 of January 21, 2009, p. 115 ( Memento of the original of April 13, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.juris.de
  14. ^ BGH, judgment of December 13, 2012, Az .: IX ZR 1/12
  15. ↑ Regulation (EU) No. 260/2012 of March 14, 2012 laying down technical regulations for credit transfers and direct debits . OJ L 94, p. 22.
  16. ↑ BGHZ 95, 103, 105
  17. ↑ BGH WM 1987, 400, 401
  18. ↑ BGHZ 162, 294, 302 f.
  19. ↑ Alexandru Petrescu: Direct debit in Germany, Romania and the EU. 2013, p. 147.
  20. ↑ BGH WM 2003, 524, 525 f.
  21. ↑ BGH, judgment of October 19, 1978, Az .: II ZR 96/77, BGHZ 72, 343, 345
  22. ^ BGH, judgment of January 17, 2013, Az .: IX ZR 184/10