Factoring

This article covers funding. For the mathematical decomposition see factorization .

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Factoring ( Latin factura 'invoice' ) is an Anglicism for the commercial, revolving transfer of claims of a company ( supplier , creditor ) against one or more debtors ( debtor ) before the due date to a credit institution or a financial services institution (factor). With real factoring , the receivables are transferred to the factor with the risk of bad debts ; with fake factoring , this del credere risk remains with the supplier. In both cases, the supplier is liable for the legal validity of the claims, i.e. continues to bear the verity risk .

General

The factoring triangle graphically represents the process of open factoring in a company.

The legal three-person relationship in factoring

As a financial service, factoring is a source of finance for medium-sized companies, which is used to finance their working capital. With real factoring you shorten your balance sheet by accounts receivable and payable and improve your liquidity situation and equity ratio . They can also be relieved of the administrative tasks of accounts receivable management. The parties involved are the supplier or service provider (factoring customer, creditor ; this is also called connection customer, connection company or client) who sells his "trade receivables" to a factor (financial service provider or factor bank), and the debtor (debtor; also Third party debtor or buyer) against whom the transferred claim exists.

history

Forerunners of modern factoring can already be found among the Babylonians and Fuggers . When the Swedish economist John Hartman Eberhardt defined the term del credere in 1771 ("Del credere is the risk to be taken by the commission agent of the buyer's creditworthiness or his ability to repay his debts on time"), the factoring process had been practiced for a long time. As early as 1677 there were 38 registered Blackwell Hall factors in London. In the United States, the textile industry began with the first organized factoring transactions in 1890. The modern, systematic form of financing factoring therefore originated in the USA. The first legal regulations concerning the obligation to notify took place here in September 1949. In the USA, factoring is only understood to mean real factoring, while spurious factoring is referred to there as “accounts receivable financing”. Modern factoring came back to England from the USA in November 1960.

In Germany, the first factor contract is to be signed in 1958 by Mittelrheinische Kreditbank Dr. Horbach & Co. KG (Mainz). At that time there was clearly only one German-language publication on the subject. On January 1, 1971, the Deutsche Factoring Bank was founded by seven Landesbanken. The German Factoring Association e. V. was founded in July 1974 and in 2018 had more than 40 members. At first, he and his members were confronted with serious legal obstacles that made it difficult to spread this form of financing. In 2015 around 2,370 factoring institutes worldwide processed sales totaling 2,373 billion euros in 60 countries.

Legal bases

In Germany, the modern factoring, which originated in the USA, began to prevail in 1978 after the Federal Court of Justice had decided two previously unresolved essential legal questions. In the judgment of June 1978, the Federal Court of Justice allowed the conditional buyer of goods to sell and assign his claims from the resale - again - within the framework of real factoring to a factor. The assignment carried out on the basis of sales law would not secure any newly established debts in real factoring, but instead an exchange of assets (claims against cash) would be carried out. The prohibition of assignment, on the other hand, is to be interpreted in such a way that it prohibits the use of cash credit through security assignment in addition to the granted credit. A year earlier, the BGH had already denied the immorality of real factoring due to the collision with advance assignments due to an extended retention of title . Conversely, however, the fake factoring collides with advance assignments, is therefore immoral and is subject to a possible prohibition of assignment. Fake factoring brings factoring customers into the dilemma of either notifying the conditional seller (i.e. their supplier) of the factoring, since their extended retention of title would in this case be ineffective (breach of contract) and thereby the risk of not being supplied or to commit a criminal offense for fraud under Section 263 of the German Criminal Code, since he would have implicitly deceived the factoring company about the fact that he is no longer entitled to the claim due to the extended retention of title. This situation is viewed by the jurisprudence as unacceptable and consequently immoral. If a global assignment or unreal factoring with extended retention of title coincides, the first two means of security are therefore ineffective regardless of the priority principle .

Factoring is not expressly regulated under civil law in Germany and mostly internationally; rather, it is a traffic-typical, non-standardized contract praeter legem ; it is a legal purchase according to § 453 BGB. A legal liability of the seller in factoring results from § 311a paragraph 2 sentence 1 BGB if the sold receivable does not exist, is not transferable or is due to a third party.

A framework contract and subsequent individual implementation contracts are common. The framework agreement regulates the contractual principles between the parties and is usually combined with a global assignment , while the execution contracts contain the specific purchases of receivables and thus the causal transactions for the transfer of claims. If a receivable is sold in the context of factoring, the transaction of disposal of the purchase contract consists in its assignment in accordance with § § 398 ff. BGB. Consequently, the right of assignment also applies, in particular § § 401 BGB (transfer of claims with all ancillary rights ), § 404 BGB (transfer of the claim with objections by the debtor) and § 409 BGB (notification of assignment). In the case of fake factoring , the transaction also consists of the assignment of the claim, but under civil and tax law a loan is generally granted by the factor, who, unlike real factoring, does not assume the del credere or default risk.

In its judgment of June 26, 2003, the ECJ also takes the view that with real factoring the factor assumes the default risk and thus relieves its customers of the risk of non-performance. According to case law, the distinction between purchase and loan is to be made in each individual case on the basis of an overall consideration of the contractual provisions. Similar to the forfaiting of lease receivables , the BFH essentially focused on the assignee's credit risk. A purchase is to be assumed if the risk of the economic usability of the receivables (credit risk) passes to the purchaser, so there is no possibility of recourse . The payment of the “purchase price” in the case of fake factoring merely represents a mere pre-financing of the claims, the assignment of which is only on account of performance ( Section 364 (2) BGB). In this case, there is a loan relationship.

In the case of an ABS structure , the decisive factor is whether the "originator", as the seller of the receivables, has also transferred the credit risk to the cedant, as is the case with so-called "true sale".

Both real and fake factoring are to be qualified under supervisory law according to Section 1 Para. 1 a No. 9 KWG as financial services that require authorization and supervision. According to the legal definition of Section 19 (5) of the KWG, for the purposes of the millions of credit reports under Section 14 of the KWG, the seller is to be regarded as a borrower when acquiring receivables for a consideration if he is responsible for fulfilling the receivables or if he has to buy them back. That is the case with spurious factoring. With real factoring, the debtor is considered the borrower.

completion

The factor's fees are usually composed of a factoring fee on sales and interest on the liquidity used . The factoring fee is essentially justified by the customer's default risk assumed by the factor ( del credere ) from the underlying purchase without recourse and the assumed servicing in the area of ​​accounting and collection . Is called interest condition mostly, according to the average collection period one margin on the 3-month EURIBOR agreed.

The factor forms security deposits to cover deductions by the buyer and verity risks of the receivables. For discounts and other instant deductions such as B. Credits and debits from returns and complaints, a so-called purchase price retention is formed. This is calculated on a daily basis depending on the amount of receivables purchased and is usually between 10% and 20%. There can also be additional withholding for counterclaims by customers and other verity risks such as B. Warranty obligations are formed. These are formed regardless of the amount of the receivables purchased. Examples of customer claims to be mentioned are the payments of annual bonuses or an advertising allowance , which are not offset against the payment of the respective claims.

Core functions and side effects of factoring

The core functions of factoring are the financing, the assumption of del credere and the assumption of services by the factor. On the basis of the purchase of the receivable, the factor usually makes an advance payment of 80 to 90 percent of the receivable amount available to the connection customer (financing function). Through the non-recourse sale of receivables, the risk of default ( del credere ) is transferred to the factor (real factoring, “true sale”). As a result, the seller of the receivables is 100% protected against bad debts. The factor also takes on debtor management for its follow-up customers (full-service factoring). This includes accounts receivable , dunning and debt collection .

As a result of the purchase of the receivables without recourse, they are no longer to be activated in the balance sheet of the factoring customers. With a simultaneous reduction in liabilities, this results in cet. par. overall a reduction in the balance sheet for the factoring customer. With unchanged equity, this leads to a higher equity ratio and thus possibly to a better (bank) rating . With a better classification, factoring can also be used to achieve better credit terms with other lenders .

Composition of the costs in factoring

The costs for factoring are calculated from these parameters:

• Factor Portable Gross - annual turnover
• Financing line (purchased receivables × advance payment ratio)
• number of customers
• Number of invoices
• Scope of the service accepted (full service factoring or in-house factoring)
• If credit insurance is taken over (two-contract model or one-contract model)
• Costs and benefits of the process

In the factoring process, costs arise from the factoring fee, the pre-financing interest rate and the del credere check. The factoring fee is levied on the (gross) turnover and is in the range of approx. 0.25 to 1.0%. The following generally applies: the greater the annual turnover, the lower the percentage fee. For companies with an annual turnover of less than € 2.5 million, the factoring fee can be well over 1.0%.

The pre-financing interest rate is charged on the effective pre-financing period and is also accounted for as required. With a collection period of z. B. 38 days, the interest is due on the advance payment of exactly 38 days. Usual interest rates are between 4.0 and 8.0% and are usually linked to a reference interest rate (e.g. three-month (3M) EURIBOR ). The interest rate tends to be lower, the better the customer's creditworthiness. The del credere check includes the credit check of the respective debtors. It accrues annually per customer and ranges between € 20 and € 60 per customer and year.

The benefit of the procedure arises from the use of liquidity. By using factoring, there is initially an active exchange (claim for money). The use of liquidity can or should result in the following effects:

If the liquidity is used for discounting in purchasing, then the costs of the procedure are offset by the discount income . The effective interest rate of the factoring process should therefore be lower than the comparable supplier credit . Typical interest rates on a supplier's credit are between 20 and 60% / year.

The discounting and the repayment reduce the balance sheet total or it shortens the balance sheet. This shortening increases the equity ratio .

Factoring forms according to the scope of services

Forms according to scope of services
	Credit check	Delcredere	Pre-financing	Debt collection
Real	j	j	j	j
Fake	j	n	j	open
Maturity	j	j	n	j
In-house	j	j	j	subsidiary

Real and fake factoring

When factoring a method is known in which the Factor accepts the credit risk. In contrast, factoring without assuming this risk is called spurious factoring . In the case law and literature, fake factoring is predominantly viewed as a loan ; the claim is assigned to secure the credit (i.e. the amount paid for the claim) and at the same time on account of performance (if the claim can actually be collected). In Germany, real factoring is mostly practiced.

Maturity factoring

Factoring variant in which the factoring customer uses the advantages of complete risk protection and the relief of accounts receivable management, but dispenses with the immediate regulation of the purchase price.

In-house factoring (also bulk factoring or in-house service factoring)

The factor limits its services. The accounts receivable including dunning remains with the customer. Only after the out-of-court dunning procedure has been completed is the factor commissioned to collect the claim.

Factoring forms according to the type of assignment of claims

Selection factoring (selective factoring, section factoring)

Normally, the factoring contract includes claims against all customers with a few exceptions. Reasons for exceptions can be: B. counterclaims, fast payers, debtors with a ban on the sale of accounts receivable, customers who work according to VOB or with down payments, private customers or customers abroad. With selection factoring, collaboration is limited in advance to certain customers.

Open factoring (notification factoring)

With open factoring, the customer is informed about the assignment of the claim. Payments on the claim are then generally only possible to the factoring company with the effect of discharging the debt.

Silent factoring

In the case of silent factoring, the customer is not informed about the assignment and sale of the claim; it remains invisible to him. The risk for the factor here lies in the inability to verify the claim, so that a customer with fraudulent intent could offer non-existent claims for purchase. As a result, a factoring company will only work with impeccable addresses in the silent process. If the economic situation deteriorates, the collateral is likely to increase.

Semi-open factoring

With semi-open factoring, the customer is not informed about the assignment of the claim, but is given a payment account or a bank account to which he has to pay and which belongs to the factor. This ensures that the return flow reaches the claim holder as directly as possible.

There are other procedures in semi-open factoring, for example when the debtors pay by check.

Special forms

VOB factoring

In VOB -Factoring is a special solution for crafts and companies in the field of construction-related trade, the Bauausführungen based on contract procedures for construction work filters (VOB). Invoices according to VOB as well as partial and partial payments can thus be factored. In order to compensate for any reimbursements that may arise, which are guaranteed by the procurement and contract regulations for construction work, a special deposit is saved in most cases from the first payments. This special deposit usually accounts for 5-15 percent of the company's total gross sales.

Individual factoring

There are now financial service providers on the market that offer companies the opportunity to meet their short-term capital requirements by selling individual receivables.

In the case of individual factoring or the sale of individual receivables, the basis of the business is a non-binding and free cooperation agreement. There are no fixed costs, the company decides for itself which receivables to sell. The amount due is transferred within a very short time and immediately improves the company's liquidity. As with classic factoring, the del credere risk (bad debt risk) and the assumption of collection are included in the financial service provider's fees. Individual factoring is therefore a flexible and inexpensive financing alternative that is as independent as possible from third parties. The capital previously tied up in receivables is completely free and independent of use.

Rental factoring

A special form of individual factoring is rental factoring in the event of loss of rent . This gives the landlord the opportunity to assign arrears or outstanding rental claims under defined conditions to the factoring company. In return, the landlord receives the purchase price of the receivables. This purchase price corresponds to the amount of the actually existing, open rental claim. The entire risk that the claim can no longer be realized due to insufficient assets is transferred to the factoring company.

Lawyer and tax advisor factoring

From 2005, factoring for lawyers developed in Germany - against the resistance of individual chambers. The first provider was the German Legal Clearing House (AnwVS). A new formulation in § 49b IV BRAO (Professional Code for Lawyers) within the framework of the reform of the lawyers' remuneration in December 2007 ensured clarity. With a ruling of April 24, 2008, the Federal Court of Justice also confirmed the admissibility of the business model. In addition, amendments to the Tax Advisory Act (Section 64 (2) StBerG) and the Auditor Ordinance (WPO) have given these professional groups the option of factoring. In 2006, DEGEV eG (German cooperative clearing office for tax consultants) was the first to enter the market. The assignment or sale of a client's fee claim to third parties, such as B. factoring companies or banks. Without the consent of the client, fee claims can be assigned by professionals to professionals, for example by a tax advisor to a lawyer or a law firm.

Reverse factoring

As in the classic procedure, the factor buys and pre-finances receivables from its customers against their customers, but reverse factoring is aimed at the supplier side. In this case, the initiator of factoring is the customer, who in this way benefits from longer payment terms . He concludes a framework agreement with the factoring company in which the factor undertakes to pre-finance the supplier's claims. The supplier and factoring company for their part then sign a supplementary contract which only includes the claims against the initiator. The factoring company transfers the corresponding amount to the supplier.

With reverse factoring, there is also the possibility that the factor takes on the del credere risk. In this case, the model is often called "Confirming", an expression that has meanwhile been seized by the Santander Bank and is used as a brand name for a corresponding own product.

Reverse factoring helps small and medium-sized companies in particular to design flexible payment terms that are strategically important in purchasing. International reverse factoring has become an important payment instrument in foreign trade developed, in part, in place of the letter of credit ( letter of credit is entered) because it is easier and less time-consuming to handle and (in the case of Confirming offers) similar safeguards.

The reverse factoring model emerged around 20 years ago in Spain under the name Pago Certificado ("certified payment") and has grown worldwide with the strong international expansion of the major Spanish banks in recent decades, particularly in Latin America and southern Europe spread. It is particularly useful if the initiator (importer) comes from a country in which very long payment terms are usually granted (in Spain, for example, 3 to 6 months are common), which the supplier (e.g. a German company) due to the in his Country can hardly accept customary business practices. With classic confirmation , the supplier can often choose whether he would like to trust the payment commitment from the bank or factoring institute, which is usually located abroad (importing country), or whether he would prefer to receive an abstract security related to the factor , which he can obtain from any bank in the own country can redeem.

Reverse factoring is often confused with finetrading . However, the two alternative forms of financing differ structurally as well as economically and legally, as the table below shows.

differences		Finetrading	Reverse factoring
Structurally	Users	The customer is the user	Buyer is user (initiator)
	implementation	Fast implementation, as no credit check of the supplier is necessary	Long implementation, since credit checks are absolutely necessary for every supplier
	flexibility	Given because the limit can be used for any supplier; Free choice of whether purchasing is processed via finetrading	Not given, as the total limit must be divided up for each supplier beforehand and the obligation to process via factor within the limit
Business economics	Financing period	Max. Up to 120 days, repayment to the day	Max. Up to 180 days, fixed repayment
	Volumes	Even small purchasing volumes are possible (from € 100,000), aimed at SMEs	Higher purchasing volumes (from € 10 million) are more aimed at large companies
	costs	I. d. R. Capital costs at 10%	I. d. Usually cheap, as approx. 1–3% above Euribor
Legal	contract	1 contract: Framework agreement between finetrader and buyer	2 contracts: Factoring contract with the supplier and factoring contract with the buyer including counter-signature by the supplier
	property	Finetrader acquires ownership of goods	Factor acquires ownership of the claim
	BaFin	Trading business, therefore not subject to BaFin (Section 1 KWG)	Financial services , therefore subject to BaFin (§§ 1 Para. 1 a No. 9, 32 KWG)

Comparison of factoring and asset-backed securities

Both factoring and asset-backed securities are receivables-based corporate financing. The main differences can be shown in a table as follows:

criteria	Factoring	Asset-backed securities
Refinancing	Refinancing through the credit market	Issuance of securities
Company turnover and volume of receivables	Annual turnover> 100,000 EUR	Accounts receivable> EUR 5 million
Terms of the claims	Duration of usually a maximum of 90 days	Securitization also for medium and long-term receivables
Del credere	100% assumption of the default risk with real factoring	Part of the default risk remains, e.g. B. via first-loss regulations at the seller of the receivables
Transaction cost	Low structuring and fixed costs compared to ABS transactions	High one-time and fixed costs
Debt review	Individual examination of the receivables to be purchased	No individual examination of claims. Use of empirical values ​​and statistical evaluations.
Accounts Receivable Management	Possibility of outsourcing accounts receivable management as part of the service function to the factor	I. d. R. Remaining of the accounts receivable management with the accounts receivable seller
Duration of implementation	Implementation usually within a period of 1 - 3 months	Lead time of up to 6 months
running time	Term of up to 24 months	Duration usually of 5 or more years.
Disclosure	Notification of the sale of the receivables by the debtor ("open factoring")	Quiet proceedings without notice
Debt concentration	usually up to a maximum of 30%	between 3% and 5%

Differentiation between factoring and forfaiting

A forfeiting includes certain receivables contractually concretely, is therefore legally species purchase to qualify. Factoring, on the other hand, also relates to the purchase of receivables that arise later, that are still unknown at the time the contract is concluded and also mostly rather short-term receivables.

Risk of fraud

Factoring and forfaiting are subject to the risk that receivables that do not even exist are sold and assigned to the factor or forfaiter. Admittedly, these risks are part of the debt seller's liability, but they are ineffective if he has used the purchase price proceeds for other purposes with criminal intent. Spectacular cases of fraud in factoring (especially Balsam AG ) have caused great damage because these forms of financing make it easier to sell bogus receivables. Balsam AG had invented claims in 1993 "simply in order to obtain liquid funds by selling them to Procedo GmbH ." The fraud was noticed in June 1994. FlowTex sold drilling machines, 85% of which did not exist, on a sale-lease-back basis . Factor or forfaiter must therefore permanently ensure through suitable control measures that there is no verity risk for them. In particular, balance confirmations or acknowledgments of debt can be obtained from the debtor .

See also

• Credit crunch
• Payment terms
• Payment history

Web links

• Information on factoring from the German Factoring Association e. V.
• Information on factoring from the Federal Association of Factoring for SMEs
• Information on factoring from the Swiss Factoring Association
• Leaflet - Notes on the factoring of the Federal Financial Supervisory Authority

Individual evidence

1. ^ David B. Tatge, Jeremy B. Tatge: The History of Factoring. (Excerpt from the book American Factoring Law , Bureau of National Affairs, 2009, ISBN 978-1-57018-792-6 ) In: International Factors Group Newsletter , April 28, 2011, p. 3 ( ifgroup.com  ( page no longer retrievable , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this note. (PDF) Page no longer retrievable "del credere is the undertaking on the part of a commission agent to assume responsibility for the credit worthiness of the buyer or his ability to liquidate his debt on the due date "  
2. ^ David B. Tatge, Jeremy B. Tatge: The History of Factoring. (Excerpt from the book American Factoring Law , Bureau of National Affairs, 2009, ISBN 978-1-57018-792-6 ) In: International Factors Group Newsletter , April 28, 2011, p. 10.
3. ^ Herbert R. Silverman: Harvard Business Review. September 1949
4. ^ Sigrun Scharenberg: The accounting of beneficial ownership in the IFRS accounting. 2009, p. 140 ( limited preview in Google Book search).
5. ^ David B. Tatge, Jeremy B. Tatge: The History of Factoring. (Excerpt from American Factoring Law , Bureau of National Affairs, 2009, ISBN 978-1-57018-792-6 ) In: International Factors Group Newsletter , April 28, 2011, p. 26.
6. ^ Sven Tillery: Financial assessment of factoring contracts. 2005, p. 2 ( limited preview in Google Book Search).
7. ↑ Cash in the till . In: Der Spiegel . No. 25 , 1965, pp. 64 f . ( online ).
8. ↑ G. Knopik: Factoring - New ways of sales financing. In: Journal for the entire credit system , 1957, p. 61 ff.
9. ↑ For many still a foreign word - factoring bank has offered a modern financing instrument since 1971. In: Weser-Kurier , January 15, 1996, p. 5
10. ↑ Annual Report 2015 (PDF) Deutsche Factoring Bank, p. 4.
11. ^ BGH, judgment of June 7, 1978, Az .: VIII ZR 80/78
12. ^ BGH, judgment of September 19, 1977 = BGHZ 69, 254
13. ^ Sigrun Scharenberg: The accounting of beneficial ownership in the IFRS accounting. 2009, p. 137
14. ^ Sigrun Scharenberg: The accounting of beneficial ownership in the IFRS accounting. 2009, p. 142
15. ↑ Hildrun Siepmann: Deductibles for securitisations. 2011, p. 57
16. ^ Jost W. Kramer, Karl Wolfhart Nitsch: Facets of corporate financing. 2010, p. 246
17. ↑ Hartmut Oetker, Felix Maultzsch: contractual obligations. 2007, p. 61
18. ^ Hans Georg Ruppe: Commentary on the sales tax law. 2005, p. 149
19. ↑ ECJ, Az .: C -305 / 01Slg I-6729
20. ↑ BFH, judgment of November 8, 2000 IR 37/99, BFHE 193, 416, BStBl II 2001, 722 with reference to the judgment of the BGH of June 21, 1994 XI ZR 183/93, BGHZ 126, 261, 263
21. ↑ BGH, judgment of October 14, 1981 VIII ZR 149/80 = BGHZ 82, 50
22. ^ Opinion of the Institut der Wirtschaftsprüfer on questions of doubt regarding the accounting of asset-backed securities arrangements and similar transactions [IDW RS HFA 8] in the version of December 9, 2003, Die Wirtschaftsprüfung 2002, 1151 and 2004, 138 Item 7 ff.
23. ↑ Marcus Creutz: New clearing house for lawyers' fees started . handelsblatt.de. January 26, 2005. Retrieved January 26, 2016.
24. ↑ Marcus Creutz: Chamber takes action against collection agency for attorney's fees . handelsblatt.de. March 10, 2005. Retrieved January 26, 2016.
25. ^ Judgment of the Federal Court of Justice of April 24, 2008 (Az. IX ZR 53/07)
26. ↑ Claudia Bannier: The liability problems under the law of obligations and bill of exchange law in the forfaiting of export claims. ( Memento of the original from July 14, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 1.3 MB) 2005, p. 9 
27. ↑ Marc Albertus: The reimbursement claim from § 31 Abs. 1 GmbHG after restoration of the share capital. (PDF; 1.5 MB) 2004, p. 23 ff.
28. ↑ Marc Albertus: The reimbursement claim from § 31 Abs. 1 GmbHG after restoration of the share capital. (PDF; 1.5 MB) 2004, p. 23
29. ↑ BGH, judgment of November 10, 2004, Az .: VIII ZR 186/03

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