Down payment
The down payment (or payment on account , A- account payment , per- account payment ; Italian : a conto / per conto = "on / in account", "on account"; characters: ℀ or a / c , also short: a c. ) is a partial payment by a client or buyer on his debt , which is to be paid by him if the contractor or seller has performed partial services .
General
In the case of purchase contracts , payments on account are not provided, since the entire purchase price is due upon delivery of the object of purchase according to § 433 BGB and partial performance of the debtor according to § 266 BGB is usually not permitted. Due to the freedom of contract , however, the buyer and seller can also agree on partial payments, but then they are called down payments or advance payments . Purchase contracts usually contain already completed purchase items, the immediate delivery of which can take place step by step against payment of the full purchase price. However, there are also items that have to be manufactured after the contract has been signed ( machines , buildings ). In most cases, work contracts are concluded for which other regulations apply.
Work contracts
In the case of contracts for work and services , the entrepreneur is obliged to perform in advance , so must first produce the work and only then can demand payment. In order to reduce this risk of advance payments, the entrepreneur has the right to demand installment payments in the amount of the value of the services he has provided ( Section 632a BGB). For this BGB contract for work and services , the down payment is due immediately after the handover of the verifiable down payment invoice ( Section 271 (1) BGB). An acceptance is not required in this respect. In the case of a VOB / B work contract, the down payment is only due after 21 working days from receipt of the auditable list of services provided ( Section 16 (1) No. 3 VOB / B). According to VOB / B, advance payments are preliminary payments by the client about which the contractor is obliged to provide information and which he must include in the final invoice .
The construction process- oriented payment plans for the purchase of real estate to be built from the developer ( Section 3 (2 ) MaBV ) form a special area . It can happen that these payment installments represent hidden advance payments instead of advance payments because no or only a lower increase in value has taken place. In order to secure the buyer in this regard, according to § 2 Abs. 1 MaBV security deposits are to be provided by the property developer through a guarantee from credit institutes or insurance companies.
Employment Law
In the case of an employment relationship, the payment of wages or salaries is an advance payment if the payment is not made in the exact amount of the remuneration already due (wages or salary), but in an approximate amount and later accounted for precisely without it requires a formal procedure. In practice this occurs e.g. B. before, if the amount of the remuneration fluctuates strongly due to the working conditions and the exact amount is only calculated afterwards and a compensation amount is paid out.
According to a legal opinion, an advance payment is only legally present if the payment is actually lower than the amount due and due. If the employer makes a payment that exceeds the wages already due, it is not an advance payment, but an overpayment or an advance payment.
In practice, however, it happens that a provisional payment is referred to as an advance payment, although the amount to be paid cannot yet be precisely determined and it is therefore not yet clear whether the payment made is actually lower or higher overall is the actual pay due and due. It can therefore happen that there is talk of an advance payment, although it is actually the full payment of the pay due and due in one amount with a salary advance in the amount of an excess partial amount.
The employer must expressly mark an advance payment as such. The reverse also applies to a salary advance. The employee must be able to recognize that a later compensation payment is to be expected or to be made for the outstanding due or not yet paid portion of a payment with regard to the wages actually due. Insofar as it is an advance payment, the employee must generally repay the advance payment or accept that it will be offset against a later payment of the salary. There is no legal entitlement to a salary advance.
consequences
For an advance payment to be due, it is necessary that the legal or contractual requirements are met, e.g. B. the specific power unit has been fully established. Failure to make an advance payment entitles the entrepreneur to stop work in accordance with Section 320 of the German Civil Code. Failure to include advance payments in a final invoice leads to their non-verifiability. If higher advance payments were made than would have been required according to the final invoice, this is an overpayment. The right to repayment of such a surplus from A-account payments arises from the underlying contract and not from the right to enrichment.
While the advance payment represents a partial fulfillment of the payment obligation, the advance payment and down payment are a customer credit from the buyer to the seller, so that the seller is able to finance the production of the object of purchase with the help of the advance or down payment. In the case of down payments and advance payments, a corresponding consideration by the seller is not (yet) offset.
In labor law, the claims of the employer and employee against each other with regard to the difference between an advance payment or an (explicit or actual) advance payment on the one hand and the actual pay due on the other hand result from the employment contract and also not from the right to enrichment. Because of the repayment obligation, the employee cannot therefore plead that he has already spent the amount to be repaid and is therefore no longer considered to be enriched.
Accounting
In the case of the entrepreneur , the advance payment received is booked as a liability in accordance with Section 266 (3) C of the German Commercial Code (“advance payments received on orders”). If the advance payments are offset by partial services, the entrepreneur may openly deduct the advance payments from the assets side under "Inventories of unfinished construction work" up to the amount of the production costs capitalized for unfinished construction work . From the client's point of view, this is a claim in accordance with Section 266 (2) BI No. 4 HGB (“advance payments made”). Commercial law only speaks of advance payments, but this also includes advance payments and payments on account. After the Federal Fiscal Court had already established in May 2014 that advance invoices for partial services provided by architects and engineers already represent a profit realization and are therefore to be taken into account in the balance sheet as a profit , it was questionable whether this regulation should also be extended to other work contracts with advance payments. In June 2015, the Federal Ministry of Finance (BMF) approved the extension, but withdrew it again in March 2016.
From these balance sheet items, the business key figure of the advance payment rate can be determined, which indicates how high the proportion of advance payments received is in relation to the partially completed work of a company:
It is particularly important in branches of industry in which the production time covers a longer period of time ( construction companies , mechanical engineering , plant engineering ).
International
In Switzerland and Austria , payments on account as consideration for partial services provided by the contractor are also known. In the English-speaking world, the term “compensation payments” clearly distinguishes these payments on account from the down payments / advance payments made without consideration.
Web links
- Gabler Business Lexicon:
Individual evidence
- ↑ Wolfgang Heiermann, Richard Riedl, Martin Rusam: Handkommentar zur VOB , 2003, § 126 Rn. 51 ( online ).
- ↑ Wages and payments on account in labor law. In: Lawyer Labor Law Berlin Blog. November 13, 2012, accessed on January 15, 2020 (German).
- ↑ Advance salary and advance payment. Retrieved January 15, 2020 .
- ↑ Advance salary and advance payment. Retrieved January 15, 2020 .
- ↑ BGH, judgment of October 28, 1999 (VII ZR 326/98), NJW 2000, 653 (655).
- ↑ BGH, judgment of September 30, 2004 (VII ZR 187/03).
- ↑ Advance salary and advance payment. Retrieved January 15, 2020 .
- ↑ BFH, judgment of May 14, 2014 (VIII R 25/11).
- ↑ BMF letter of June 29, 2015 (IV C 6 - S 2130/15/10001) or March 15, 2016 (IV C 6 - S 2130/15/10001).
- ↑ Katja Möllmann: On the susceptibility of small and medium-sized construction companies to crises , 2001, p. 87 ( online ).
