delay of acceptance
The default of acceptance (also: creditor default ) occurs when the creditor does not accept the performance of the debtor , which would have been possible and was offered in accordance with the contract, in good time at the time of performance.
In German law, default of acceptance is regulated in § 293 ff. BGB . First of all, the debtor's offer of performance is to be seen as a prerequisite. The offer of the service must be provided in accordance with the contract. The offer must therefore be made at the place of performance and at the contractually agreed time (which can be objectively determined from the circumstances in the absence of a contractual agreement - but then, according to § 299 BGB, default of acceptance only if the debtor has previously announced the performance). According to Section 294 of the German Civil Code, the obligee must also be able to come close to the performance. It must therefore be an actual offer. If the obligee refuses to accept the performance, which has been notified in advance, all that is required is a verbatim offer in accordance with Section 295 of the German Civil Code (BGB) to put the obligee in default. If the obligee's cooperation is required, an offer according to Section 296 of the German Civil Code (BGB) is even dispensable if it is not made. According to § 297 BGB, however, it is always necessary that the debtor is willing and able to perform. In the case of synallagmatic (= mutual) obligations , the obligee is also in default of acceptance if he wants to receive the performance, but on the other hand does not offer the performance owed himself.
Transfer of risk
The default of acceptance is not a breach of duty (for example in the sense of Section 280 (1) BGB), but only means that the obligee now bears the risk of performance. The debtor enjoys a liability privilege during the delay in acceptance and only has to represent intent and gross negligence ( Section 300 (1) BGB). If the thing goes down by slight negligence or by chance, the obligee remains obliged to provide his consideration ( Section 326 (2) sentence 1 BGB), while the debtor no longer has to perform the service. The obligee must also pay reimbursement of expenses in accordance with § 304 BGB if costs arise. The debtor can free himself if he can deposit the things ( § 372 BGB).
In addition, the delay in acceptance gives more concrete form ( Section 300 (2) BGB), even if the debtor has not yet done everything necessary to perform (cf. Section 243 (2) BGB). This is particularly important for the literal offer ( Section 295 BGB).
In the area of foreclosure of services that take place step by step, the foreclosure may only be carried out by the bailiff if the debtor expressly or conclusively refuses to accept ( § 756 , § 765 ZPO).
In the area of service contracts and employment contracts , according to § 615 BGB, the employer must pay for the service in accordance with the contract if he is in default of acceptance. Contrary to the general regulations, there is expressly no obligation to catch up on the service ( § 615 sentence 1 BGB).
Rights of the seller in the event of default of acceptance
In principle, the seller has the right to have the additional expenses incurred due to the default in acceptance reimbursed by the buyer, as well as the costs of maintaining and storing the item.
Deposit of the goods
If the purchased item is money (bills or coins), securities, other documents or valuables, the seller can deposit the goods at the local court responsible at the local court at the risk and expense of the buyer ( Section 372 ). The buyer must be notified of the deposit .
If the purchase is a commercial transaction for both parties , the seller can also store items other than those mentioned above in a public warehouse or in some other secure manner ( Section 373 (1) HGB).
Self-help sales
Goods that cannot be deposited can be auctioned publicly by the seller ( Section 383 BGB) after threatening the buyer with the auction ( Section 384 (1) BGB). The buyer must also be informed of the place and time of the auction ( Section 384 (2) BGB).
Exceptions:
- Goods with market price or daily price:
If the goods are traded on the stock exchange or if there are current prices, the seller may set a grace period and, after the deadline has expired, effect the sale “from free hand” even without an auction.
- Perishable goods:
If the goods are perishable (for example food), the goods can be sold without a grace period and without prior warning (“emergency sale”).
In any case, the seller must then inform the buyer of the result of the self-help sale.
The self-help sale takes place for the account of the defaulting buyer. If the proceeds of the self-help sale are less than the seller's claim, the original buyer is obliged to pay the difference to the seller. If the proceeds from the self-help sale are higher than the seller's claims, the seller is obliged to pay the difference to the original buyer.
Late acceptance fee
As a result of the default in acceptance, Section 615 of the German Civil Code (BGB ) regulates that services not provided must also be remunerated. The employee is not obliged to make additional payments. Section 11 of the KSchG also contains a largely identical regulation on crediting , which, however, does not regulate the employer's obligation to pay.
Special features of default in acceptance in labor law
In labor law, too, the principle applies that default of acceptance only occurs if the employee as the debtor actually offers his work, i.e. he appears ready to work at the workplace.
If the employer terminates the employment relationship, an actual offer on the part of the employee is superfluous in accordance with Section 296 BGB. Namely, in the announcement of the termination lies the refusal of the employer to fulfill his cooperation obligations in the future. This obligation to cooperate consists in providing the employee with a functioning workplace.
In the case of an ineffective self-resignation by the employee, an ineffective termination agreement or a fixed-term employment relationship, at least a verbatim offer of work is required to trigger the employer's obligation to cooperate. Such an offer is usually seen in a lawsuit against the time limit or against the termination agreement.
Offsetting of saved expenses and other earnings
The employee must have saved expenses, such as travel expenses, credited; this is provided for in Section 615 BGB, but not Section 11 KSchG. Since § 11 KSchG is lex specialis , this provision is relevant if the Dismissal Protection Act is applicable. In this case, saved expenses are not credited. However, these will mostly be only small amounts.
The employee must further allow for what he has acquired through other earnings or what he maliciously fails to acquire. This means that the employee is initially obliged to obtain income elsewhere.
Only in § 11 No. 3 KSchG is the crediting of social benefits, in particular unemployment benefits and sick pay, expressly regulated. Outside of the scope of the Dismissal Protection Act, however, crediting follows from Section 115 SGB X ( Tenth Book of the Social Code ). According to this provision, the remuneration claims in the amount of the services are transferred to the service provider. The employee is therefore no longer a creditor of these claims.
Termination of default of acceptance
The employer must expressly request the employee to work in order to avoid or end the default of acceptance.
Default of acceptance in Switzerland
Articles 91 et seq. And in particular 97 et seq. Of the Swiss Code of Obligations deal with the consequences of non-fulfillment of a contractual agreement, both from the perspective of the obligee (unjustified refusal of the offered service) and the debtor (goods are not delivered, the agreed work is not paid, debt not paid). In any case, anyone who does not want to or cannot adhere to the agreement is liable to pay compensation to the contractual partner. He must therefore fully replace the income lost to the other. After a reasonable deadline for supplementary performance has also not been met, the obligee may place the same order with a third party and the faulty party must bear the additional costs.
Web link
Individual evidence
- ↑ Hans Brox , Wolf-Dietrich Walker : General law of obligations . 39th edition. CH Beck , Munich 2015, ISBN 978-3-406-64653-9 , pp. 307 .
- ^ Judgment of the Federal Labor Court of January 19, 1999, 9 AZR 679/97
- ^ BAG, judgment of November 24, 1994, Az .: 2 AZR 179/94
- ↑ The "appropriate" depends on the nature of the contract. An order to repaint a room is certainly less time-critical than the date for the delivery of a wedding cake. The deadlines may differ accordingly.
