Acceptance ban
The Akzeptverbot is in check law the ban , that a target bank opposite the check taker not to credit-law payment of a check may be required.
General
In contrast to a bill of exchange ( Art. 28 Paragraph 1 WG ), a check is not a credit , but a means of payment . On account of performance , it replaces both the cash payment and the bank transfer . The ban on acceptance is intended to prevent checks from having a banknote-like effect.
Legal issues
In Germany, the ban on acceptance is standardized in Art. 4 Check Act , in Switzerland in Art. 1104 OR . There is therefore no security claim against the bank drawn from the check . This can, however, take on an independent guarantee of the check cashing towards the check taker .
Effects
The legal standardization of a ban on acceptance has always resulted in ordinary checks becoming a relatively insecure means of payment. Anyone who accepts a check on account of performance always bears the risk that the bank drawn will not pay it (the check “bursts”). In order to mitigate this risk, the legislator has created possibilities to enforce claims from unpaid checks relatively easily and quickly in court ( check dunning procedure and check process ).
However, experience shows that even in countries that do not have a ban on acceptance (for example in the USA), the risks of an unconfirmed check are relatively readily accepted. Although every US American bank may accept checks drawn on them ( English certified checks ), payment with such checks is expressly required only in exceptional cases. As a rule, a normal check with no guarantee is sufficient.
In this respect, the situation in Germany, where after the abolition of the guaranteed eurocheques, the importance of the check as a means of payment has decreased dramatically, is rather an isolated case in an international comparison. In addition, there is the paradox that as a result retailers have in many cases switched to payment methods that are even more insecure (such as electronic direct debit ).
Legal consequences
Art. 4 ScheckG clearly regulates that an unlawful acceptance affixed to the check is considered "not written". Any resulting obligation under the law of obligations would be null and void according to Section 134 BGB (violation of a statutory prohibition ). For this reason, a check taker cannot claim the drawn bank for payment; he hasto keepto the person who issued the check.
Exceptions
German Bundesbank
The Deutsche Bundesbank is the only German credit institution to be exempt from the ban on acceptance and is therefore allowed to confirm checks drawn on it (so-called Confirmed Bundesbank Check , Section 23 BBankG ). It is colloquially referred to as the “Bundesbank check” or sometimes also as a (confirmed) “LZB check” (today's regional branches of the Bundesbank were formerly independent state central banks ). The Bundesbank may only confirm such checks if there is sufficient funds in the account .
Bundesbank checks are usually z. B. required as a bid security for judicial foreclosures . There are also some use cases in the private sector (for example, when buying a used car privately, where cash payment would be impractical due to the often high amounts and all other payment methods would be too unsafe for the seller).
Since a citizen is usually not allowed to have an account with the Bundesbank, such checks are obtained through their respective house bank , which is usually subject to a charge. This takes a check on their own Bundesbank account, has it confirmed and hands it over to the customer. Before this, the corresponding amount will be debited from the customer's account or at least blocked to ensure payment.
Travelers check
With a so-called traveler's check , there is a payment guarantee , but this is not an illegal acceptance. Travelers checks are colloquially referred to as checks, but legally they are not. Rather, it is an abstract promise of debt that is evidenced in a document and that the issuing organization makes itself after the amount of the check has been paid there.
Since the payment guarantee is only valid if the holder signs the check a second time at the moment of payment, there is no risk of using it as replacement money. As soon as the check has been signed for the second time, it can theoretically still be passed on to other people, but the payment guarantee then expires (which is often difficult to understand in practice).
Eurocheque
The payment guarantee at eurocheque , which was limited to 400 D-Marks , did not violate the ban on acceptance because it was not immediately given by a corresponding note on the check. In order to trigger the guarantee, the check issuer also had to present the so-called eurocheque card , the number of which was noted on the back of the check. Thus, although these checks could each be used as a substitute for cash for a single transaction, they could not circulate freely as substitute money in the economic cycle. With the introduction of the euro on January 1, 2002, the Eurocheque guarantee was discontinued.
Individual evidence
- ↑ Hans-Peter Schwintowski: Check business , in: Peter Derleder / Kai-Oliver Knops / Heinz Georg Bamberger (eds.), Handbook on German and European banking law, Berlin and Heidelberg 2009, pp. 1307-1331
- ↑ BGHZ 166, 125
- ↑ Mathias M. Siems: Fundamentals of bank contract law ( Memento of the original dated February 7, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 2003, p. 24 ff., 26
- ^ Check confirmation Rechtslexikon.net, accessed on May 8, 2016
- ↑ BGE 120 II 128 ff.
- ↑ Discontinued model eurocheque FAZ , May 26, 2001
