Joint account

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Under joint account is understood in banking a bank account , must have at least two equal account holder.

General

In contrast to the joint account is the individual account . Only one account holder is authorized to dispose of this. With the joint account , credit institutions give their bank customers the additional option of allowing several account holders to have equal access to the same account. The account holder is whoever is the bearer of the rights and obligations of the giro contract on which a bank account is based and who, according to the identifiable will of the parties, is to become a creditor or debtor of the credit institution. What is decisive for the account ownership is who appears or is designated as the person entitled to the claim to the bank when the account is set up. Taking into account the particular circumstances of the individual case, it must be checked who, according to the recognizable will of the payer, should become the bank's creditors. The formal account holder is usually derived from the account name and can also be viewed as a creditor / debtor.

In addition to the account holder, the only person authorized to dispose of the account (or authorized representative ) is someone who has been given an express bank power of attorney by the account holder , according to which he may carry out all actions and transactions in the name and for the account of the account holder that are directly related to the management of the account. The power of attorney is thus a legally justified power of representation for the account holder. The declarations of intent made by the authorized representative on behalf of the account holder represented work directly for and against the account holder. An account power of attorney is usually a so-called generic power of attorney, as it authorizes all orders that are usually directly related to account management. This means that the scope of action of an authorized representative is very limited compared to that of an account holder.

While a credit balance of the bank customer on the bank account represents a claim from irregular custody according to § 700 BGB, the debit balance is a loan liability within the meaning of § 488 BGB. Payments into and out of the bank account are therefore usually also acts to establish or fulfill the specified obligations or individual obligations arising from them. In the case of credit-side bank accounts, cash payments represent the return of the money held in custody for the customer ( Section 688 BGB) and cash deposits represent the surrender of the money to be kept (Section 700 BGB); In the case of accounts with debit balances, cash payments are to be regarded as loan payments, cash payments as loan repayments (§§ 488 ff. BGB).

Legal position

Joint accounts are creditors and debtor majorities in the form of partial, total and joint creditorships (§ § 420 , § 428 , § 432 BGB), debit balances are partial and joint debt (§§ 420, § 421 BGB) and joint debt in the case of indivisible performance (§ 431 BGB). The account holders of a joint account are joint creditors according to § 428 BGB or joint debtors according to § 421 BGB, who have a mutual proportional compensation obligation according to § 430 or § 426 BGB. While each of the joint creditors is entitled to dispose of the entire bank balance, each account holder is jointly and severally liable to the credit institution (externally) in the event of a debt balance.

Types of joint accounts

Depending on whether the account holders of a joint account may dispose individually or jointly, a distinction is made between And accounts and Or accounts . The credit institutions have issued “special conditions for joint accounts”, which are part of the terms and conditions . Thereafter, each account holder is entitled to dispose of a joint account, unless otherwise instructed in writing. Joint accounts are therefore, in case of doubt, Oder accounts. In terms of banking law, the legal consequences of a joint account are regulated by section 2 (3) of the special conditions. According to this, each holder has sole power of disposal; each account holder is solely liable for debit balances , even if they were created by other account holders.

And accounts

And accounts are characterized by the joint power of disposal of all account holders. All account holders must exercise uniform power of disposal that is recognizable for the bank. It is a matter of membership in accordance with Section 432 (1) of the German Civil Code (BGB), in which each account holder can only request fulfillment from all account holders and the bank can only fulfill this by providing a service to all account holders. Disposals, account transfers, dissolutions and powers of attorney in favor of third parties are only permitted jointly by all account holders. For these reasons, AND accounts are hardly suitable for everyday use. However, it is possible to give each account holder a power of attorney. After this, it is also possible to issue girocards and credit cards .

And accounts are created in addition to the contractual account opening also by law (e.g. account of a single account holder who is inherited by several people ). The account holders regularly form a community of fractions (§ § 741 ff. BGB). It is therefore only possible to dispose of the portion of the account balance, but not of the balance itself ( § 747 BGB). A termination of the AND account can only be pronounced jointly by all account holders. Analogous to § 736 ZPO, a title against all account holders is required for foreclosures in AND accounts. Since all account holders regularly have to participate in a process, special mutual trust between the account holders is not necessary.

Or accounts

The interests of the Oder account are typical of total creditors, because the bank, as the debtor, wants to be able to discharge each of the account holders. Each account holder is therefore authorized to dispose alone, i.e. without the involvement of the other account holders. Each account holder has an individual power of disposal that he can exercise for or against the other account holders. This autonomous power of disposal therefore requires a high level of mutual trust between the account holders, because dispositions are possible without the consent of the other account holders and can lead to debit balances for which the other non-disposing co-owners are also liable. It is a matter of total creditorships according to § 428 BGB (or joint and several debtorships according to § 421 BGB), in which every creditor can demand or owe the entire performance. However, the bank may not make payments to one of the account holders at its own discretion, but must make payments to whoever requests it first.

Or accounts for spouses / life partners are typical . They are joint creditors according to § 428 BGB with the consequence that they are entitled to equal shares in relation to each other according to § 430 BGB, unless otherwise regulated. During an intact marriage of the account holder, the obligation to compensate is generally ruled out because it follows from express or tacit agreements, the purpose and handling of the account or provisions on the marital partnership that “another is determined” within the meaning of Section 430 BGB. In the absence of written or oral agreements between the spouses about their internal relationships, this can be inferred predominantly from the behavior of the spouses. The decisive factor is how the couple actually handle the Oder account and, in particular, how they use the funds that they do not need for their current lifestyle. If the spouse who does not make any payments into the Oder account can also access the funds provided by the other spouse for the formation of their own assets, this can indicate that the statutory equalization rule of Section 430 BGB should remain and that each spouse via the thereafter he can actually and legally freely dispose of the part of the account balance allotted to him. However, the OR accounts do not give individual account holders the right to borrow and add unlimited amounts of credit. Credit agreements are possible together, as well einzuräumende account powers, while existing personal credit or account overdraft individually by each account holder are possible. Account overdrafts are limited to 3 times the monthly income of the account holder ("normal banking limit").

All account holders are jointly and severally liable for their liabilities on the joint account . Each of them is entitled to dispose of the account alone, to close it or to have it transferred to his or her name and to authorize third parties in this context. In particular, each account holder is also liable for those liabilities that have arisen through the dispositions of another co-owner. The revocation of an individual power of disposal results in the conversion of the OR account into an And account with joint power of disposal. Account opening applications often provide that each account holder can revoke the sole right of disposal of the other, with the result that a revocation transforms the joint account into an AND account. Cancellation is also only possible by all account holders. In the case of foreclosure, the title against an account holder is sufficient to enforce in the account.

Depot account as a joint account

In the case of custody accounts as joint accounts, a strict distinction must be made between the ownership of the securities held and the rights from the custody agreement. Section 430 of the German Civil Code (BGB), which regulates the internal relationship between joint creditors, is only relevant for the rights arising from the custody contract, but not for the ownership of the securities in custody. According to this, the holders of an Oder custody account are joint creditors only with regard to the rights from the custody agreement, but not with regard to the securities held .

There is no general belief in bearer securities , especially shares . The decisive factor is the entitlement in rem, i.e. the property situation. The establishment of a depot as an Oder depot usually does not provide any information about this. This is true because the account holder does not necessarily have to be the owner of the securities in custody. Experience has shown that setting up an Oder custody account for married couples often only serves the purpose of enabling both the owner and the unauthorized other spouse to dispose of the securities.

When a single custody account is converted into a joint custody account, it cannot be assumed for married couples that the ownership structure of the custody account should also be changed. The ownership situation of securities in the "Oder-Depot" is to be assessed according to § § 742 , § 1006 BGB. The owners of an Oder custody account are indirect co-owners, so that according to Section 1006 (3) BGB, the indirect owner is also the owner. Newly acquired securities that are booked in an Oder custody account are regularly the sole property of the purchaser.

Others

Because of the special relationship of trust and self-power of disposal is at or accounts the risk of Kontoplünderung which is especially important if not more intact marriage relationships.

Some couples therapists advise couples, in the interests of the relationship, to exchange each other's reasons for choosing a joint or separate account. Around 42% of married couples do not have a joint account (as of 2009).

literature

  • Knut Hansen, The legal nature of joint accounts and custody accounts , Diss. Cologne, 1967.

Individual evidence

  1. ↑ BGH WM 1996, 249, 250.
  2. ↑ BGHZ 127, 229, 231.
  3. ↑ BGHZ 124, 254, 257.
  4. ^ BGH WM 1993, 2237.
  5. ^ Hermann Staub / Peter Ulmer, Large Commentary on the HGB , 2005, p. 151.
  6. ^ A b Claus Wilhelm Canaris (Ed.), Bank Contract Law Part 1 , 2005, p. 152.
  7. ^ A b Wilhelm Rütten, Majority of Believers , 1989, p. 206.
  8. ↑ BFH, judgment of November 23, 2011, Az .: II R 33/10.
  9. ↑ Hans-Michael Krepold / Sandra Fischbeck, Bankrecht , 2011, p. 16.
  10. ^ OLG Nuremberg WM 1990, 1370, 1372.
  11. ↑ MünchKomm / Karsten Schmidt, BGB 2nd edition, § 741 marginal note 52.
  12. ^ BGH, judgment of February 25, 1997, Az .: XI ZR 321/95.
  13. ↑ a b BGHZ 4, 295, 297.
  14. ↑ A couple in love can also have separate accounts , WAZ from April 1, 2010.
  15. ↑ Shared bed, separate accounts , FOCUS Money from April 23, 2009.