The performance period includes two distinguishable points in time, namely the date on which the debtor must provide the service ( satisfiability ) and the date on which the creditor may demand performance ( due date ). The fulfillment and maturity of a claim generally coincide, but it follows from (2) BGB that a claim can also be fulfillable before it is due. The determination of the due date in a debt relationship is subject to the free agreement of the parties. Claims arise from contracts , but also from legal regulations, and the question arises of when they are to be fulfilled . The respective obligee can demand immediate performance by the debtor if nothing else is stipulated by contract or statute and nothing else can be inferred “from the circumstances”. This means in particular the nature of the contractual obligation, the nature of the service and the custom . “Immediately” means that the debtor has to provide his performance as quickly as possible under these circumstances ( (1) BGB). The term maturity is not explicitly mentioned in this provision. However, the due date not only leads to the debtor's immediate obligation to perform, but also means that the debtor has a right to refuse performance before the due date.
In the case of many mutual contracts, the law assumes that the seller who is liable for material, service or work is obliged to make advance payments to the buyer who is liable for payment . Then the monetary debt is only due when the seller has fulfilled his contractual obligations. Prior obligations of this kind reflect the fact that a strict train to train settlement is not possible in many cases. Therefore, in everyday practice, obligations in advance - if sometimes only for a few seconds - are the rule and step by step performance according to BGB is the exception.
Types of maturity
A distinction is made between maturities that result from legal regulations and those that are based on contractual agreements.
Due by law
In some cases, the law provides for typical contractual obligations that must be fulfilled when the due date is reached. This includes in particular loan ), (2) BGB ( rental security ), (1) BGB ( rent ), BGB ( loan ), BGB ( work ), BGB ( custody ) , BGB ( remuneration ), BGB ( BGB society ), BGB ( life annuity ), paragraph 2 BGB ( family maintenance ) or paragraph 4 BGB (maintenance for ). For due dates in the General Terms and Conditions, No. 1 BGB applies .BGB (
Due by contract
In most everyday purchase contracts , it can be assumed that a specific due date has not been agreed. Then the immediate maturity of both contract-typical services applies, i.e. the immediate delivery of the goods by the seller and the immediate payment of the purchase price by the buyer ( BGB). The delivery obligation is an advance performance obligation, so that the due date of the purchase price cannot usually occur without the delivery of the seller. However, if the buyer knows when the contract is concluded that the seller does not have the goods in stock but has to order them first, delivery is required within a reasonable time. According to Art. 33c CISG ( UN Sales Convention ), delivery within an “appropriate period after the conclusion of the contract” is provided. If nothing is mentioned in a written contract about the due date, it is assumed that the contract is complete. The payment claim from a guarantee arises when the main debt is due and is therefore also due. This means that the guarantee claim becomes due only when the creditor makes use of the surety.
So-called restrained claims are characterized by the fact that the debtor does not have to or may not perform the performance of his own accord before the obligee demands it. The due date only occurs when the obligee demands performance.
In some contracts, the time of performance, however, is calendar- determined, so a specific date named for the due date. This includes in particular contracts for long-term obligations such as from employment relationships , loans , rent or lease agreements . The due date occurs when the date has expired. The rent is due according to Abs. 1 BGB at the beginning of the month, at the latest by the third working day of the month.
The remuneration is based on an employment relationship after the work has been performed and is due after the agreed period of time has expired ( German Civil Code). For salaried employees, the due date is on the first day of the following month, which is also usually agreed for wages. Similarly, the remuneration from a service contract is due after the service has been performed or after the agreed time periods have expired ( BGB).
The are insurance benefits with the display insured event the insurance company due. According to No. 3 Paragraph 1 Clause 1 VOB / B (2002), the contractor's wage claim can only be due on the condition that the client has been presented with a verifiable final invoice .
If the agreed due date falls on a Saturday , Sunday or public holiday , the debtor has to provide his performance on the next working day ( BGB). The Federal Court of Justice (BGH) expressly does not regard Saturday as a working day for rent debts - and thus also for similar contract types, in particular because it is not considered a banking day .
The due date of the entire (remaining) benefit can be made dependent on a condition . A so-called maturity clause ( cash clause ) is provided in loan contracts , according to which in the event of full or partial non-fulfillment of interest and / or repayment payments, the entire loan amount including interest is due for immediate repayment. The obligee is then entitled to “make the loan due” without notice. In addition, this non-performance triggers the lender to terminate the contract , whereby the due date occurs when the notice period expires .
If the debtor fails to provide a service when it is due, he may be in default . A requirement for this is a request for payment. Under special circumstances, however, there is no need for a request for payment and he is immediately in default. This applies if the performance was scheduled for a specific calendar date, the debtor refuses to perform or if it is justified after weighing the interests of the creditor and the debtor ( German Civil Code). A breach of the obligation to provide benefits can only have consequences once the due date has occurred. If the debtor does not provide the due performance or does not perform as owed, the obligee is entitled to a claim for damages under (1) BGB if he has unsuccessfully set his debtor a reasonable deadline for performance or supplementary performance . In the event of default, late payment surcharges and / or reminder fees are regularly levied; possible damage caused by delay is also to be compensated.
Deferral and default
The deferral is a subsequent change in the due date. The due date can therefore be postponed through deferral, which is brought about by the creditors and debtors with the help of a debt amendment contract ( (1) BGB).
If the due date passes without the debtor having performed his or her performance, he will be in default without further ado . The due date is therefore a legal requirement for default. It is also the prerequisite for the start of the statute of limitations .
Due date in tax and social law
According to AO , the due date in tax law is based on the provisions of the individual laws (e.g. (4) sentence 1 EStG , GrEStG ). If there are no special regulations, however, AO establishes a basic rule corresponding to Paragraph 1 BGB, according to which the tax payment claim is due when it arises . Payment deadlines set in tax assessments determine the due date after a date. The taxpayer's claims for reimbursement are due when the tax assessment notice is issued.
Swiss and Austria
In the Swiss law of obligations, Art. 75 OR must be observed with regard to the due date . Due date refers to the point in time from which a creditor can assert a claim and the debtor must fulfill it. Incidentally, the outbreak of bankruptcy generally results in the debts of the bankruptcy becoming due (Art. 208 Para. 1 SchKG ).
In Austria , if the due date has been determined in advance (the due date and the exact amount to be paid are fixed in advance without the addition of further circumstances), the debtor must submit the payment order to his bank in accordance with Section 907a (2) ABGB in good time so that the amount is valued in the creditor's account on the due date . However, if the due date is only triggered by an invoice or a reminder, a transfer order within 2 to 4 working days after the due date is sufficient. In the case of rental contracts , the statutory payment date for the rent has been on the 5th day of each month since March 2013; in the full scope of the MRG, deviating agreements are ineffective to the detriment of the tenant (Section 15 (3) MRG), but in principle permissible in other existing law (Section 1100 ABGB ). In case of doubt, the rent must be received by the landlord on the last day of the due date, i.e. usually on the 5th of the month (§ 907a ABGB).
- Ulrich Huber : Performance Disorders , 1999, p. 390.
- Ulrich Huber, Performance Disorders , 1999, p. 391.
- Ulrich Huber, Performance Disorders , 1999, p. 289.
- RGZ 52, 23, 25
- BGH, judgment of February 26, 2013, Az.XI ZR 417/11, full text
- MünchKomm BGB / Krüger, 5th edition, § 271 Rn. 4; Palandt / Heinrichs, BGB, 70th edition, § 271 Rn. 1; see. also BGH, judgment of January 29, 2008 - XI ZR 160/07, BGHZ 175, 161, Rn. 24
- Harald Schliemann / Reiner Ascheid, Commentary on Labor Law in the BGB , 2002, p. 362.
- BGH, judgment of July 13, 2010, Az. VIII ZR 129/09, full text
- BGE 129 III 535, 541; Handkomm-Kren Kostkiewicz OR 75 N 2
- Hunziker / Pellascio, p. 274
- ErlzRV 2111 BlgNR 24.GP 16
- JAB 2178 BlgNR 24.GP 2