Direct debit authorization

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The debit authorization process was in Germany and Austria in addition to the debit order one of two direct debits within the framework of non-cash payments . In Austria, it was replaced by the SEPA direct debit or SEPA business-to -business direct debit on February 1, 2014 ; in Germany, it could still be used to a limited extent within a transition period until February 1, 2016.

With the SEPA direct debit or SEPA B2B direct debit, the procedure has been aligned with the security advantages of the standing order , but the initiation continues to come from the payee . The main difference is that the standing order includes a fixed amount, the direct debits can also contain variable amounts.

General

Participants in both direct debit procedures are the creditor as the payee , his account-keeping bank as the first collection agency , the debtor is the payer , and his account-keeping institute is the paying agent .

The creation of the European Payments Area (SEPA) also affects the national German direct debit procedure. The SEPA direct debit procedure has existed since November 2009, which also affects the two German direct debit types. The dates for the termination of the national payment systems result from the EU regulation No. 260/2012. Accordingly, the national direct debits have been switched off together with the national transfer since February 1, 2014. Since then, all paperless payment transactions have been switched to SEPA.

Legal issues

In the case of SEPA direct debits, the material and legal provisions of the payment service law ( §§ 675 ff. BGB ) and formally the special terms and conditions for direct debits apply . The direct debit agreement is to be used between the credit institutions . In addition, in July 2010 the BGH standardized the case law on direct debit authorization in insolvency and showed a way to further develop the direct debit direct debit into (pre) authorized payment. In this, the BGH has confirmed that the direct debit authorization procedure can be reproduced by the banking industry with legal effect in the GTC since the new payment service law came into force ( Section 675j Paragraph 1, Section 675x Paragraph 1, Paragraph 2, Paragraph 4 BGB) .

The special terms and conditions for direct debit specify the general terms and conditions of the payment service framework agreement, according to which the payment process by means of direct debit is only authorized by the customer afterwards via the approval of the corresponding direct debit entry on his account (Section A. No. 2.1.1 and No. 2. 4 ). On the other hand, payment by direct debit in the SEPA direct debit procedure to the paying agent is authorized in advance when the SEPA direct debit mandate is issued (Section C. and D. No. 2. 2. 1, respectively). The SEPA mandate not only includes - like the direct debit authorization (Section A. No. 2. 1. 1) - the authorization of the payee to collect the amount from the account of the debtor, but also the instruction directed to the paying agent, which to redeem the SEPA direct debit drawn by the payee on the debtor's account (Section C. and D. No. 2. 2. 1, respectively).

In the special conditions for the direct debit authorization it is made clear that the payer does not authorize the payment process in advance by granting the authorization; the (subsequent) authorization depends on the issuing of the approval to the paying agent. Even according to the new General Terms and Conditions for Banks that came into effect on July 9, 2012, direct debit authorizations are not considered to have been authorized in advance. In the absence of prior authorization for the payment transaction, the direct debit authorization procedure in its current legal form does not fall within the scope of Section 675x BGB. In the case of the direct debit authorization procedure, the effectiveness of the debit depends on the debtor approving it to his paying agent ( Section 684 sentence 2 BGB). In the absence of giro-contractual instructions, the paying agent in the cover relationship is therefore not entitled to a claim for reimbursement of expenses in accordance with Section 670 BGB until the payer has approved the unauthorized debiting of his account in accordance with Section 684 sentence 2 BGB.

SEPA core direct debit

The SEPA Core Direct Debit contains numerous familiar elements from the German direct debit system . Due to the regulations for the SEPA core direct debit, first-time direct debits must be received by the paying agent five days before the due date, while subsequent recurring payments must be received at least two days before the due date. The lead time for one-off direct debits is also five days. A SEPA core direct debit can be objected to within eight weeks of the account debited so that the debited amount is credited again. In the event of an unauthorized payment, the payer can request reimbursement of the direct debit amount within 13 months of the debit.

The law expressly provides that the payment order is issued to the payer's payment service provider “directly or indirectly through the payee” ( Section 675f (3) sentence 2 BGB). According to Section A. No. 2.4 of the Special Conditions for Direct Debit, objections by the debtor to direct debit can be raised six weeks after the invoice has been closed.

Fulfillment

According to the principles of the fulfillment of a monetary debt , the claim on which the direct debit is based is only fulfilled with unconditional credit to the account of the payee - with a condition for dissolution . With an unconditional credit , the payee obtains the necessary unrestricted power of disposal over the payment amount. There are no changes in the collection relationship between the creditor and his bank in the SEPA procedure. In the case of the collection of the claim by direct debit, the debtor does not effect the originally owed cash payment with the account credit, but instead gives the creditor a claim for payment against his first collection agency. Such a legal contractual performance agreement can be subject to a dissolving condition, so that the legal consequence of performance does not apply in the event that the condition occurs. However, in the SEPA core direct debit procedure - unlike in the SEPA business-to-business direct debit procedure ( Section 675e Paragraph 4 BGB in conjunction with Section D. No. 2.1.1 at the end) - the creditor only has a finally secured legal position eight weeks after the debit entry attained. Up to this point in time, the debtor can request reimbursement of the payment amount from his bank without giving reasons ( Section 675x Paragraph 1, Paragraph 2, Paragraph 4 BGB in conjunction with Section C. No. 2.5 Paragraph 1 ).

Direct debit return

Unredeemed direct debits are referred to as return debits. According to a procedure defined in the direct debit agreement, they are charged back between the banks involved, debited from the account of the payee and credited back to the account of the debtor. Reasons for returning a direct debit can be:

  • The direct debit account does not have any funds, which means that there is neither sufficient credit nor an adequate credit line in the account .
  • The specified account does not exist or has been closed. EC Cash direct debits must still be redeemed within an 8-day period (submitted by the merchant).
  • The account specified is a savings account .
  • Account number and name of the debtor do not match.
  • The debtor has objected to the direct debit.

The payee is usually informed of the reason for a returned direct debit, for example, in the event of an objection, by stating "Presented and not paid due to objection". However, if the direct debit is not carried out due to insufficient funds, this must not be communicated (return text “Presented and not paid”).

Due to various rulings by the Federal Court of Justice, bank fees for direct debit returns may not be charged to the debtor by the paying agent. However, fees for the payee are permitted. The latter can claim the expenses and expenses incurred against the debtor as compensation, provided that a direct debit authorization was valid at the time the direct debit was submitted.

revocation

The revocation is finally regulated in § 675j Paragraph 2 Clause 1, § 675p BGB, provided that at least one consumer is involved. According to the unambiguous wording, § 675x BGB gives the debtor an independent claim as an active reciprocal right, which does not omit the authorization of the payment transaction. In the case of direct debits, section 675p (4) sentence 1 of the German Civil Code (BGB) likewise does not give the option of extending the deadline for revoking the payment order by means of a contractual agreement between the debtor and his paying agent. If the payer refuses approval by contradicting the debit entry, the paying agent must correct this debit. If the objection is made within six weeks after the debit entry, the paying agent can return the direct debit in an interbank relationship (Section III No. 1 and 2 of the direct debit agreement); the collection agency then debits the creditor's account with the amount previously credited, including return debit fees. By § 675x BGB a period of 8 weeks after exposure (since July 9, 2012) is considered in the national direct debit. Failure to raise objections in time is deemed to be approval of the encumbrance. If there is no direct debit authorization, a correction can be made within a period of up to 13 months ( Section 676b (2) BGB). After the period of 13 months has expired, there are no more claims for reimbursement or compensation after a charge has been made to the account. The objection period for the debtor in the European SEPA direct debit procedure is 8 weeks after the account has been debited. If the debtor objects to direct debits in a timely manner or if there is no direct debit authorization, the direct debit concerned is deemed to be unauthorized. The paying agent is then obliged to cancel unauthorized debits ( Section 675u BGB). Approval cannot be seen in the mere silence of an account statement received . A mere silence on such an extract does not constitute a conclusive legal declaration, let alone an approval of account debits.

In the case of company direct debits , the right of revocation under Section 675j Paragraph 2 BGB in conjunction with Section 675e Paragraph 4 BGB can be excluded, with the consequence that a direct debit debited from the payer's account is not possible.

Transitional period for the direct debit authorization procedure

The direct debit authorization is only marginally covered by § 675c BGB, because the core of the new banking contract law is missing, namely the payment order from a debtor to his paying agent. The previous direct debit authorization process has not been permitted since February 1, 2016 and was only allowed to be used temporarily for payments that were generated at a point of sale with the help of a payment card ("electronic direct debit").

Advantages and disadvantages for those involved

The direct debit authorization procedure brings considerable rationalization effects for the payee, especially organizational and booking advantages, and is inexpensive. He has the initiative to collect his outstanding debts and usually receives the money he is entitled to on time, which is associated with considerable liquidity and interest advantages. A separate entry is only required in the relatively rare cases in which direct debit collection fails; the entire dunning process can largely be omitted because the accounts receivable control is reduced to a minimum. For the consumer , this form of cashless payment has the advantage that he neither has to write checks nor issue transfer orders. The direct debit authorization is risk-free for him insofar as he can counter the debit of his account by revoking it.

Since the consumer has to ensure that there is sufficient funds in his account on each due date of each direct debit authorization issued, and is forced to subsequently check the amounts collected in the event of a necessary objection, his effort increases proportionally to the number of direct debit authorizations issued. Furthermore, the consumer bears the risk that the collecting agency will reclaim the costs incurred from him in the event of a direct debit that is consciously or unconsciously caused by the consumer.

Individual evidence

  1. ↑ Regulation (EU) No. 260/2012 of March 14, 2012
  2. ↑ Direct debit agreement from July 2012
  3. ^ BGH, judgment of July 20, 2010, Az .: XI ZR 236/07
  4. ↑ BGH, judgment of July 20, 2010, Az .: XI ZR 236/07, No. 21
  5. ↑ BGH, judgment of July 20, 2010, Az .: XI ZR 236/07, No. 43
  6. ↑ explanatory memorandum BT printed matter 16/11643 of 21 January 2009, p 115 to § 675x BGB
  7. ↑ BGH, judgment of July 20, 2010, No. 29
  8. ↑ BGH WM 1987, 400, 401
  9. ↑ BGH, judgment of July 20, 2010, Az .: XI ZR 236/07, No. 30
  10. ↑ BGH, judgment of March 8, 2005, Az.XI ZR 154/04
  11. ↑ BGH, judgment of July 20, 2010, Az .: XI ZR 236/07, No. 25
  12. ↑ BGHZ 177, 69, paragraph 14
  13. ↑ BGH WM 1997, 1658, 1660
  14. ↑ Kurt Schellhammer, Entitlement Bases BGB , 2011, p. 415
  15. ↑ BGH, NJW 2003, 1237