Collection authority
The collection authority (including money received power of attorney ) is a power of attorney that authorizes the attorney, claims for the power of attorney giving creditors from the debtor in a foreign name with power of attorney to collect ( debt collection ) or payments accept.
General
The principal remains the creditor of the collection authority, while the claim to be collected remains not only economically but also formally foreign to the authorized representative. In the case of a power of attorney to collect, the creditor retains his legal status as a creditor, because he only gives the authorized representative a power of attorney in the form of a direct debit authorization. In contrast, the collection association is an assignment through which the claim is transferred to a new creditor.
The power of attorney to collect occurs most frequently in shops , where shop employees have the legal authorization to accept the purchase price for the shop owner. The core business of debt collection companies consists in asserting a third party claim against the debtor initially by means of an extrajudicial reminder , but if necessary also within the framework of the judicial dunning procedure .
Legal issues
- General
The collection authorization is a breakaway creditor law and represents a case of consent for disposal via a third-the Consenting belonging law ( § 185 BGB ). The direct debit authorization is not about actually separating the direct debit right from the claim, but exclusively about granting a third party the authority to assert the right to which another person is entitled in his own name against the debtor. The authorized representative can only dispose of the claim through collection in his own name and - if there is his own interest - sue it in his own name.
A power of attorney to collect extends to all legal acts associated with the collection of claims. This includes in particular the dunning process , the calculation of interest on arrears and the receipt of payments on the claim. The latter is associated with a fictitious access , because the payment received by the collection agent is deemed to have been received by the principal. However, this fictitious access does not apply if the debtor knows or is unaware as a result of gross negligence that the authorized representative is not authorized to receive payments. The debtor therefore only pays with discharging effect if the payee has a statutory or contractual power of attorney from the obligee to receive the payment.
The power of attorney to collect occurs in different areas of law :
- Commercial law
In commercial law , the power of attorney according to § 49 HGB also includes the power of attorney to collect and receive payments. The same applies in accordance with § 54 HGB for the power of attorney . Salesmen and commercial agents , on the other hand, are not authorized to grant payment deadlines or to accept payments without express collection authority ( Section 55 HGB). They are only entitled to accept payments if they are expressly authorized to do so (Section 55 (3) HGB). Anyone who is employed in a shop or in an open warehouse is, in accordance with Section 56 of the German Commercial Code (HGB), as authorized to sell and receive means of payment that usually occur in such a shop or warehouse. The regulation is intended to exempt customers from the obligation to investigate whether and to what extent the shop employees are authorized to receive the purchase price. If a cash register has been set up, the cashier alone has this power of attorney. After § 97 HGB applies the commercial broker in doubt as no authority to accept a payment or other stipulated in the contract in reception. Conductors or employed taxi drivers, on the other hand, usually have authority to collect.
- Debt collection agencies
The assertion of the claim by a debt collection company occurs either on the basis of a collection authority ( § 2 Paragraph 2 Alt. 1 RDG ) or a security assignment ( § 2 Paragraph 2 Alt. 2 RDG). With the power of attorney to collect, the obligee retains his legal status as a creditor, because he only gives the debt collection company a power of attorney to collect the claim. The assignment of security is only permitted after the occurrence of the security event and is therefore essentially in the own interest of the assignee.
- Travel law
In terms of travel law , in accordance with Section 651v (2) of the German Civil Code, a travel agent is deemed to be authorized by the tour operator to accept payments on the travel price if he provides the traveler with a corresponding copy or confirmation of the contract or other circumstances attributable to the tour operator indicate that he is entrusted with arranging package travel contracts for him. This is a legal presumption of authority to collect . For the acceptance of payments on the travel price by the travel agent , § 651t No. 2 BGB applies accordingly due to advance payments and travel security certificate .
- Insurance law
The insurance law knows with § 69 Abs. 2 Satz 1 VVG a legally fictitious collection authority for the insurance agent . This also applies to employees of the insurer in the field . On the other hand, the insurance broker is not equipped with a statutory collection agency because the fictitious access resulting from this is inappropriate for the insurance broker, since he is on the customer's side.
- Foreclosure law
In enforcement law, there is occasional mention of the power of attorney to receive money , which legitimizes the receipt of funds. In the case of lawyers , this can be expressly taken into account in the mandate . It occurs, for example, with the attachment and transfer order , in which a paying agent may be included, to which the third party debtor has to pay. This must check the existence of a power of attorney to receive money before paying. The power of attorney generally only authorizes the receipt of seized amounts of money in the amount of the titled legal fees . In addition, proof of a separate power of attorney to receive money is required.
economic aspects
As with any power of attorney, the principal must be able to trust that the proxy will execute the authorization as intended by the principal. The authorizer is subject to the risk that the agent the retracted payment suppresses and does not forward to the authorizer. However, that is about the case of a money receiving power -off with backward legal costs possible.
International
In the Swiss literature, the separation of the right to collect from the actual creditors' right is treated only very rudimentary and as a rule in connection with the right of assignment. The authority to collect is the representation of the obligee in the assertion of his claim against the debtor. It is a subtype of the power of attorney regulated in Art. 32 OR . The authorized representative has the right to issue a reminder and to collect credits , to initiate proceedings and to initiate legal proceedings . In debt enforcement proceedings (similar to the German dunning procedure) in Switzerland - unlike in German law - extra-procedural representation costs cannot be passed on to the debtor ( Art. 27 (2 ) SchKG ).
In Austria , the authorized signatory also has the authority to collect debts for his company according to Section 49 (1) of the Austrian Commercial Code . According to Section 54 (1) of the Austrian Commercial Code, this also applies to the authorized representative . The cashier (s) and shop clerks according to Section 56 UGB, the insurance agent ( Section 45 (1) No. 4 VVG) or the tram conductors also have a statutory collection authorization .
Individual evidence
- ↑ BT-Drs. 16/3655 of November 30, 2006, draft of a law to reorganize legal advice , p. 48
- ↑ Carl Creifelds , Creifelds Rechtswörtbuch , 2000, p. 21
- ↑ BGHZ 82, 283 , 288
- ↑ Wolfgang Wiegand, The Collection Authorization in German, Austrian and Swiss Law , in: Friedrich Harrer / Wolfgang Portmann / Roger Zäch (eds.), Special Contract Law - Current Problems, 2002, p. 125
- ↑ BGHZ 82, 283, 288
- ↑ BGH, judgment of September 24, 1975, Az .: VIII ZR 74/74 = NJW 1975, 2191
- ↑ Bund-Verlag GmbH (Ed.), Arbeit und Recht , Volumes 16-17, 1969, p. 299
- ↑ Christopher Seidel, Inkasso-Kompendium , 2019, No. 105
- ↑ BT-Drs. 16/3655 of November 30, 2006, draft of a law for the new regulation of legal advice , p. 48
- ^ Mark Niehuus, Reiserecht in der Anwaltlichen Praxis , 2008, p. 444
- ↑ BT-Drs. 16/1935 of June 23, 2006, draft of a law to revise insurance brokerage law , p. 26
- ↑ Marc Schlömer, The Admissibility of Premium Collection and Claims Adjustment by Insurance Brokers , 2018, p. 74
- ↑ Bernhard Wieczorek / Rolf A. Schütze / Wolfgang Lüke / Roman Loeser (ed.), Comment on the Code of Civil Procedure and Ancillary Laws , Volume 4, 1999, p. 1128
- ^ LG Duisburg, decision of August 23, 2012, Az .: 7 T 80/12
- ↑ Wolfgang Wiegand, The Collection Authorization in German, Austrian and Swiss Law , in: Friedrich Harrer / Wolfgang Portmann / Roger Zäch (eds.), Special Contract Law - Current Problems, 2002, p. 123
- ^ Rudolf Pollak, Floor Plan of Commercial Law , 1927, p. 167
