In particular, the current accounts are understood as the most important type of account through which all cash and cashless payment transactions are processed. In addition, all monetary equivalent values from custody , metal and other accounts are booked through them . In addition, credit institutions also have accounts that only handle certain transactions (overnight money, foreign exchange accounts, etc.). From the point of view of a bank's customer, “credit” in the account balance is a credit (a claim against the bank) and “debit” in the account balance is a debt (a liability towards the bank).
The bank account is an account managed by a credit institute on the basis of the current account (§ ff. HGB) and the terms and conditions , which ends with a credit or debit balance. This bill opens into a mostly created to quarter or year accounts . The accrued interest and fees are usually offset in this.
The account holder is someone who is the bearer of the rights and obligations of the giro contract on which a bank account is based and who, according to the identifiable will of the parties, is to become a creditor or debtor of the credit institution. The person entitled (or authorized representative ), however, is granted a bank authorization by the account holder, after which he may make in the name and on behalf of the account holder all actions and transactions, which are directly related to the accounting. This includes in particular
- the authorization to dispose of existing bank balances,
- take advantage of granted loans,
- make use of account overdrafts within the normal banking framework and
- Receive or acknowledge bills, bank statements and notifications.
The power of attorney is thus a legally justified power of representation for the account holder. The declarations of intent made by the authorized representative on behalf of the account holder represented act directly for and against the account holder as an account disposal. An account power of attorney is usually a so-called generic power of attorney, as it authorizes all orders that are usually directly related to account management.
While a credit balance of the bank customer on the bank account represents a claim from irregular custody according to BGB, the debit balance is a loan liability within the meaning of BGB. Payments into and out of the bank account are therefore usually also acts to establish or fulfill the specified obligations or individual obligations arising from them. In the case of credit-side bank accounts, cash payments represent the return of the money held in custody for the customer ( BGB) and cash deposits represent the surrender of the money to be kept (Section 700 BGB); In the case of accounts with debit balances, cash payments are to be regarded as loan payments, cash payments as loan repayments (§§ 488 ff. BGB).
Account types according to the power of disposal
With regard to the power of disposal, a legal distinction is made between individual accounts and joint accounts. A distinction must be made between an account holder and a person authorized to dispose of a bank account. Since October 2009, both types of account have been mentioned by the Payment Services Directive adopted in (2) of the German Civil Code (BGB), because according to this, credit institutions have to "keep a payment account in his name or in the names of several payment service users"; the account holder is meant by the payment service user.
- The individual account is a bank account that is either managed for a single private person or a single legal entity and therefore only has one account holder. The account holder is the sole creditor of the credit claim or borrower of a debt balance. Independently of this, however, this account holder can name several natural or legal persons as authorized persons to dispose of the individual account.
- In contrast to individual accounts, joint accounts have more than one account holder. These are joint creditors according to German Civil Code or joint and several debtors according to German Civil Code, who have a mutual proportional compensation obligation in accordance with or German Civil Code. While each of the joint creditors is entitled to dispose of the entire bank balance, in the event of a debt balance, each account holder is fully liable to the credit institution (externally). Depending on the right of disposal, one then speaks of either an and account or an or account .
With an And account, all dispositions can only be made jointly by all account holders, so the account holders must work together. The bank can only make joint payments to all account holders with a discharging effect. Depending on the structure of the internal relationship , the AND account is either a joint partnership or a fractional community according toBGB, whereby the account holders are only authorized to jointly dispose according to BGB. Regardless of whether there is a joint partnership or a fractional community in the internal relationship, all account holders of an AND account are jointly and severally liable to the credit institution. If the account claim is attached in the context of foreclosure against one of the account holders, the other account holder has the right to intervene in accordance with Section 771 ZPO.
In the case of the Oder account, each of the two or more account holders has an individual power of disposal. The account holders (e.g. spouses) agree with the bank that they may independently use the account. Each account holder alone can dispose of the entire balance. However, it is not possible for one of the account holders to close the account alone. The signatures of all account holders are required for this.
An OR account is usually set up by spouses and allows each spouse to dispose of the account regardless of the other spouse. As the holder of an OR account, the spouses are joint creditors in accordance with Section 428 of the German Civil Code (BGB), with the result that in the internal relationship between the spouses, a compensation obligation in accordance with Section 430 of the German Civil Code (BGB) comes into consideration if one spouse has used more than half of the credit balance. Such a claim for compensation does not exist during the intact marriage period (BGB). This right to compensation can only arise after the separation. The liability of both spouses to the bank remains in the external relationship, the bank may demand the entire debt balance from an account holder. The total faithfulness means that in the event of the attachment of the account in the context of foreclosure against one account holder, the other account holder cannot bring a third party objection action (Section 771 ZPO).
The question of whether an account holder of an OR account may unilaterally convert it into an AND account is controversial. The BGH answered this question in the negative because converting an OR account into an AND account would worsen the legal status of the other account holders. Clause 5 of the GTC now stipulates that each account holder can revoke the individual authorization of another account holder for the future.
Or deposit accounts
In the case of the Oder custody account, a distinction must be made between ownership of the securities held and the rights from the custody contract. Section 430 of the German Civil Code (BGB), which regulates the internal relationship between joint creditors, is only relevant for the rights arising from the custody contract, but not for the ownership of the securities in custody. According to this, the holders of an Oder custody account are joint creditors only with regard to the rights from the custody agreement, but not with regard to the securities held. There is no general belief in bearer securities , especially shares . The decisive factor is the entitlement in rem, i.e. the property situation. The establishment of a depot as an Oder depot usually does not provide any information about this. This is true because the account holder does not necessarily have to be the owner of the securities in custody. Experience has shown that setting up an Oder custody account for married couples often only serves the purpose of enabling both the owner and the unauthorized other spouse to dispose of the securities.
Account types according to the business purpose
For legal reasons or for the sake of clarity, credit institutions keep several types of accounts for a customer, especially in the case of extensive business relationships. These types of accounts are also referred to as bank accounts.
- The current account (including current account or deposit account called) serves as a payment account handling current inputs and outputs.
- The savings account - often as a savings account called - provides a short-term income investment even for small amounts.
- Call money accounts and time deposit accounts are used to invest funds that are not required in the short term.
- Credit accounts are used to process loans .
- Foreign currency accounts are current accounts that are used to post sales in a specific foreign currency that are not (initially) converted into euros. Existing foreign currency balances can later be used in the same foreign currency so that there is no exchange rate risk.
- Credit card accounts are mostly used as revolving accounts and are used to post card transactions.
- Donation accounts are used to process donations and are usually designed as current accounts.
- A shadow account is z. B. led for money cards . The sales saved on the card are mirrored here.
- In addition to normal current account services, the value-added account includes golden credit cards, a number of insurance benefits and other discounts. However, these value-added accounts are often more expensive than normal checking accounts.
- The metal account is an account in ounces or kilograms and grams or number of coins.
Individual account of a spouse
The account holder of an individual account is one spouse alone, regardless of the authorization for the other spouse. Therefore, the account holder is also the creditor of the account balances, regardless of who deposited or transferred them. This also applies to debts on the account. They are debts of the account holder, even if they arose from dispositions of the authorized spouse or debits from third parties.
As an exception, both spouses can be entitled to a credit balance in an individual account, in whole or in part, if
- the couple agreed that the credit should belong to both of them or
- Both spouses deposit funds into an individual account of a spouse in order to save for a specific purpose or
- one spouse has their entire income from work transferred to an individual account of the other spouse . Then the presumption suggests that the account balance should proportionally be due to both spouses.
Joint account of the spouses
If there is credit in a joint account, half of this credit is due to each spouse in case of doubt. As joint creditors, the spouses have a mutual obligation to compensate in accordance with Section 430 of the German Civil Code, regardless of their existing property law relationships. It doesn't matter where the credit comes from. If, for example, only the husband has income that is transferred to the joint account, half of the balance is still due to the wife, unless the spouses have agreed otherwise. If a spouse claims that they are entitled to more than half of the balance, they must prove this.
Both spouses are jointly liable for debit balances, even if one spouse has withdrawn a larger amount up to the credit limit without the consent of the other. This is where the other spouse can claim reimbursement - although this is not easily enforceable - if the corresponding amount has been spent - the so-called " account looted ". This is a sub-case of damage according to German Civil Code (BGB) if, shortly before the separation, a spouse makes dispositions of the joint account beyond the share due to him without the knowledge of the other account holder and acts with intent to do so. This resolution is always present when the spouse knows that he is withdrawing more than he is entitled to. If he withdraws more than half of the balance, he must reimburse the other spouse for the difference. However, this reimbursement claim may no longer be enforceable if the affected spouse has already spent the money, for example on moving costs.
Debt in a joint account is a joint debt. Each spouse is internally liable (i.e. the spouses among themselves) for joint debts from a joint account, regardless of how and by whom the debts were incurred, but the bank may hold one of the account holders liable for the total amount.
- BGH WM 1996, 249, 250
- BGHZ 124, 254, 257
- BGH WM 1993, 2237
- BGH WM 1990, 2067, 2068
- Peter Derleder / Kai-Oliver Knops / Heinz Georg Bamberger, Handbook on German and European Banking Law , 2003, p. 922
- Peter Derleder / Kai-Oliver Knops / Heinz Georg Bamberger, Handbook on German and European Banking Law , 2003, p. 918 ff.
- BGH WM 1990, 2067
- MünchKomm / Karsten Schmidt, BGB 2nd edition, § 741 marginal note 52
- BGH, judgment of February 25, 1997, Az .: XI ZR 321/95
- BGHZ 4, 295, 297
- OLG Düsseldorf, judgment of January 27, 1999, Az .: 11 U 67/98