Money debt

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Under money owed (or money payment promissory ) each of which is in the legal sense of guilt referred to that of the debtor with legal tender in a given currency has to pay.

Germany

The German Civil Code (BGB) regulates this topic only fragmentarily in view of the paramount importance of financial debts in everyday life. Only §§ 244 and 270 BGB deal with monetary debts. Section 244 of the BGB regulates the payment of a monetary debt that is denominated in a foreign currency . It can be paid in euros if payment in a foreign currency has not been expressly agreed ( effective clause ). According to § 270 BGB, money debts are to be paid at the residence or place of business of the obligee , at the risk and expense of the debtor (see place of performance ).

Creation of monetary debt

Monetary debts arise in particular from debt relationships . This is understood to mean contractual (such as the sales contract or the loan agreement ), legal (such as from unjust enrichment ) or similar to legal transactions (such as from culpa in contrahendo ). You can also choose from judgments , fines or administrative offenses result that someone to pay a fine condemn or impose and have not been paid immediately. The setting of taxes by tax bills also leads to financial debts if they are not paid immediately. Debtor from this is whoever is obliged to pay money.

Monetary debt

In the case of monetary debts, money is an exception as a commodity if collector coins are the object of purchase. Money tangible liabilities are in coin debt and money places debt divided. Money can in individual cases piece guilt be, namely, when a coin collector a Maria Theresa thaler buys. There is a real guilty of currency when buying (any) a Krugerrand . The difference between the two collector coins is that the Maria Theresa thaler is always a custom-made piece that is individually selected and purchased by the buyer. In the country of manufacture, South Africa, the Krugerrand is the official legal tender, however, as an exchangeable mass product, a generic debt . In § 245 BGB, the law also regulates the false currency debt if the debtor is obliged to pay money in a coin that is no longer in circulation at the time of payment. Then he can regard his debts as a normal payment debt.

Payment debts

Money (payment,) debt are otherwise generally generic debt special kind. They are by cash and cashless payment transactions settled. In order to be able to perform, a fixed amount of money must be agreed.

Fulfillment of monetary debts

The law only knows the fulfillment of monetary debts through monetary payment , although this is not expressly regulated.

cash payment

According to traditional understanding, the cash payment is the “actually” owed performance of the debtor and therefore leads to the fulfillment of the monetary debt through the transfer of ownership of the cash according to § 929 sentence 1 BGB. Payment must be made in cash using legal tender in the contractually or otherwise prescribed currency . If the debtor pays in this way, the obligee has an unlimited obligation to accept (for banknotes , limited for coins ; see means of payment ).

Book money

Since it is expected that money debts will be paid in cash, book money in the form of bank transfers, checks, bills of exchange or other non-cash transactions such as credit cards is not a contractual fulfillment in case of doubt.

Transfer

The bank transfer is a payment in book money, which is not legal tender and therefore does not trigger any obligation to accept the creditor. It should be noted that the recipient bank is not a “third party” within the meaning of Section 362 (2) of the German Civil Code (BGB) , but merely acts as the creditor's paying agent. The required consent of the obligee for a transfer can be tacitly seen in the disclosure of his current account on business letters or invoices . In the case of a bank transfer, in the absence of any other agreement, the success of the service required for the fulfillment will only be achieved if the obligee finally receives the amount owed at his disposal. This is the case when the transferred amount is credited to the creditor's account and the creditor has sole power of disposal over the account (ie individual account or "or" account for the joint account ). The prevailing opinion sees cashless payment transactions as a performance rather than fulfillment , because book money was paid instead of the cash owed.

Since the mere act of performance (issuing a transfer order to the debtor's account-keeping bank) is not sufficient for the fulfillment, the performance must be successful (through the final crediting of the book money to the giro account of the obligee with his free disposal).

check

If the debtor fulfills an owed payment by check, a performance is given. The obligation will only be fulfilled if the obligee actually receives funds from the check provided on account of performance; until then, his claim remains in full ( Section 364 (2) BGB) . The usual bank credit note "Receipt reserved (E. v.)" On the account statement does not yet constitute a final credit ; only when the check is finally cashed by the debtor is the debtor's debt also extinguished. A debt, for the payment of which a check was given on account of performance, only lapses when it is redeemed in favor of the person entitled to the check. As the BGH further explains in this ruling, the sending of the check can be seen as an informally declared offer by the debtor to his creditor to conclude a check issuing contract .

species

According to the type of fixed amount, a distinction is made between the debt of the sum of money and the debt of the value of money , the former being the rule.

Sum of money debt

In the case of a monetary debt, the quantum of value is determined exclusively in currency units. Hence it is also called a monetary debt. So their value depends on the face value. The risk of devaluation due to inflation is borne by the creditor. Value retention clauses are subject to legal restrictions. The legal institution of the discontinuation of the business basis owes its existence to this circumstance .

Monetary debt

In the case of a monetary debt, on the other hand, the service content is based on the monetary value of an object or asset. It is more stable in value.

Delimitation of the obligation to deliver from the obligation to send

Until now, the general opinion has been that the monetary debt is a qualified dispatch debt in which the place of performance and the place of success fall apart. The debtor only had to bear the risk of transferring the money, not the risk of delay (e.g. in the case of a bank transfer).

Directive 2011/7 / EU of the European Parliament and the EU Council of February 16, 2011 on combating late payment in business transactions and a ruling by the Court of Justice of the European Union (ECJ) in April 2008 caused legal uncertainty in Germany . Until then, the rule was that the debtor had to transfer the money debt to the creditor at his place of residence at his own risk and expense ( Section 270 Paragraph 1 BGB ); in the case of commercial operations as the creditor, the place of business or the place of establishment is the place of payment (Section 270 Paragraph 1 BGB ) . 2 BGB).

In October 2016, the Federal Court of Justice (BGH) decided that the debtor must have done everything in good time that is required at the place of performance in order to satisfy the obligee; the success of the service - the crediting of the transfer amount to the payee account - is no longer part of the debtor's performance. In this ruling, the BGH confirmed that neither the EU directive nor the ruling of the ECJ would change anything for the consumer as a debtor. In business transactions between companies ( business-to-business ) or with the public administration ( business-to-administration ), however, the debtor's payment is considered to be late if the obligee cannot dispose of the amount owed in good time; the amount owed must have been credited to the obligee's account in due time. Contracts with consumers are not subject to the scope of this EU directive. An extension to consumers is also not desired, according to its objective, because Recital 8 of the EU Directive provides that its scope of application should be limited to payments made as payment for commercial transactions and should not include transactions with consumers.

Practical consequences arise above all for the question of how long the debtor is in default of payment and who has to pay for any damage caused by default.

Others

Monetary debts are not rate-dependent debts (valorism); In addition, the BGB stipulates that every object can be weighed in money. The principle of unlimited financial liability results in the principle “You always have money to have”, because not being able to pay does not release you from having to pay. This principle is derived from the possibility of foreclosure that may be available to the creditor and the existence of the bankruptcy code. If a debt cannot be paid, the only way to satisfy the creditors is to go into bankruptcy . The monetary debt remains as a debt of value even if the entire type of money perishes.

Austria and Switzerland

Since March 1, 2013, § 907a ABGB has been in force in Austria  . According to this, monetary debts are basically payable debts and thus at the place of residence of the obligee. In Switzerland, too, financial debts according to Art. 74 Para. 2 No. 1 OR delivery debts and must therefore have been credited to the obligee on the due date. The debtor must take bank working days into account when making the transfer.

Individual evidence

  1. ↑ a b Joachim Gernhuber: The fulfillment and its surrogates . 1994, p. 200 f . ( Preview ).
  2. ↑ BGH NJW 1986, 875, 876
  3. ↑ Guido Toussaint: The law of payment transactions . 2009, p. 11 ( preview ).
  4. ↑ BGH judgment of November 9, 1978 (Ⅶ ZR 17/76) BGHZ 72, 316 - 322, 318  - "Claims of the conditional supplier against a bank in the event of a null global assignment"
  5. ↑ BGH NJW 1996, 210
  6. ↑ BGH judgment of January 25, 1988 (Ⅱ ZR 320/87) BGHZ 103, 143 - 149, 146 (= NJW 1988, 1320 - 1321)  - "Timeliness of the revocation of a transfer order in the document-accompanying transfer between banks"
  7. ↑ Peter Schlechtriem: Law of Obligations, General Part . 2005, p. 185 ( preview ).
  8. ↑ Guido Toussaint: The law of payment transactions . 2009, p. 13 .
  9. ↑ BGH judgment of March 29, 2007 (Ⅲ ZR 68/06) NJW-RR 2007, 1118 - 1119  - "Duty of care of the creditor of a contractual payment claim upon receipt of a check sent by the debtor on account of performance" - judgment. (PDF; 82 KiB) Federal Court of Justice, March 29, 2007, accessed on July 10, 2017 .
  10. ↑ BGH judgment of December 5, 1963 (Ⅱ ZR 219/62) NJW 1964, 499 - 500  - "Timeliness of premium payment when transferring"
  11. ↑ Directive 2000/35 / EC of June 29, 2000, Official Journal L 200, p. 35 (PDF)
  12. ↑ ECJ, judgment of April 3, 2008, Az .: C-306/06, Coll. 2008, I-1923 Rn. 28: 01051 Telecom GmbH / Deutsche Telekom AG: Full text , accessed on July 11, 2017
  13. ↑ BGH, judgment of October 5, 2016, Az .: VIII ZR 222/15
  14. ↑ Compare only the presentation of the dispute with Martin Schwab: Debt as debt? . In: NJW . 2011, August, pp. 2833 - 2838. As a result, the author denies the view that financial debts should be viewed as bringing debts. In his opinion, it remains with the qualified blame for sending.
  15. ↑ a b Wolfgang Färentscher: contract law . 1997, p. 160 ( preview ).
  16. ↑ Ellen Ulbricht: When customers abroad don't pay . 2012, p. 86 ( preview ).