A down payment (formerly a deposit , premium or liability fee ) is given if the buyer makes a partial payment in a sales contract or if the buyer makes a partial payment in another contract , whereby the delivery or service has not yet taken place.
Legally, the down payment represents a partial performance by the debtor , to which he is fundamentally not entitled ( BGB ), because normally the entire purchase price is due in one sum . Since the contractual contract of sale also allows deviating agreements, the down payment represents the agreement to a partial performance. It can be a sign of the conclusion of the contract ( Paragraph 1 BGB), but cannot be like a contractual penaltyexpired. It should serve as evidence and not be a prerequisite or agreed form of the conclusion of a contract. The deposit is to be reimbursed if the purchase contract is canceled again ( (2) BGB). In addition, advance payments represent a breach of the step-by- step principle, especially in the case of purchase contracts for everyday life , which requires both contracting parties to provide full performance at the same time ( BGB).
In the cases of daily life, the (verbally concluded) sales contract will be designed in such a way that the seller allows the buyer to make the down payment, but the transfer of ownership and handover of the object of purchase only takes place once the purchase price has been paid in full. It is also possible that, as part of a retention of title, the transfer takes place with the down payment. In both cases, the down payment should grant the buyer the right to reserve the object of purchase, with the result that the seller will not sell the goods elsewhere. The down payment turns the buyer into a lender with the typical credit risks up to the risk of insolvency . In this case, the down payment represents a loan from the buyer to the seller ( BGB). However, if the goods are already transferred and handed over with the down payment, the seller makes an advance payment and grants a supplier credit .
To protect the buyer against the risk of non-delivery, which could mean that a loss threatens his down payment, often in business by the seller payment guarantees of a credit institution offered to the purchaser. In international credit transactions, the English term “down payment” is usually used instead of the German word “down payment”; the down payment guarantee is called prepayment bond or advance payment bond accordingly .
Down payments for package tours
Down payments or advance payments are customary, especially for package tours . In order also in this case without such intermediate clauses the risk of bankruptcy of the tour operator side to the traveler and to transmit, in principle, the principle of the power train to train , on the other hand, however, to recognize also to obtain the legitimate interest of the tour operator to an at least partial coverage of their inputs is in BGB a legally binding security of the deposit is provided. This can be guarantee / warranty of insurance companies or banks in the form of a guarantee certificate ( Reisesicherungsschein done). In the case law of the Federal Court of Justice (BGH) it is recognized that clauses that give rise to an obligation to perform in advance are subject to content control in accordance with German Civil Code. The BGH considers advance payments of up to 20% of the travel price to be appropriate in view of the changed risk distribution resulting from § 651t BGB .
In accounting , advance payments received can either be shown separately under liabilities or openly deducted from inventories (work in progress / work in progress) in accordance with (5) sentence 2 HGB . In the first alternative, Para. 3 C 3 HGB stipulates the passivation as "down payments received on orders" under the liabilities, the second alternative leads to a balance sheet item with a negative sign on the assets side under § 266 Para. 2 BI No. 2 HGB.
From these balance sheet items , the business key figure of the down payment rate can be determined, which indicates how high the proportion of down payments received is in relation to the partially completed work of a company:
The advance payment is to be distinguished from the down payment . A payment in several purchase price installments z. B. In the case of contracts for work and services , an advance payment is regularly made, because it is an anticipated partial performance because work that has already been performed but not yet invoiced has preceded it. For example, in German Civil Code (BGB) it is assumed that these installments are offset by an increase in value that has arisen from construction work. The down payment is a consideration for the services of the other contractual partner and not an advance on services that are due in the future, such as the transfer of ownership of an object of purchase, so that the provisions on loans do not apply. In the case of successive delivery contracts, partial services are even the subject matter of the contract and are therefore owed.
- Dieter Medicus / Stephan Lorenz : law of obligations. A study book. Volume 1: General Part. 5th, revised edition. Beck, Munich 1990, ISBN 3-406-34873-4 , p. 204.
- BGH NJW 2001, 292, 293
- BGH, judgment of June 20, 2006, Az .: X ZR 59/05
- Katja Möllmann, On the susceptibility of small and medium-sized construction companies to crises , 2001, p. 87