checking account

The current account (of Italian giro / dʒiːro / "circle circulation" to Greek gȳrós (γυρός) "round"), including current account and in laws payment account called, is one of banks led for bank customers current account for the settlement of payments . Payments are posted in favor of and debited to the current account.

history

It is not clear when the first accounts that fulfilled the current function of current accounts were created. With the money changers ( Italian bancherii from "bancus", table ) and their customers, cashless payment transactions began in Europe in the Middle Ages. As early as the 11th century there are records of credit or debit notes, of transfers from one account to the other. Cashless traffic from one “bank” to another via clearing accounts is also verified. However, because a transfer could only be ordered orally, the business of the changers was initially limited to regional payment transactions. It was not until the 14th century that written payment orders began, and with them, cashless payment transactions in a national style.

The well-known in Islamic countries hawala financial system, which also works with accounts, but only between acting as bank dealers, has already been documented in 1327, but there have been centuries earlier settlements of claims and liabilities.

In the late Middle Ages, a form of account settlement spread among merchants in Europe and ultimately worldwide, which is a direct forerunner of today's current accounts. In Germany, giro traffic probably began in Hamburg, where the Hamburger Bank was founded in 1619 . This settled in two currencies, namely the Mark Banco (bank currency for cashless account payments) and the Mark Courant for money circulation purposes . Two centuries later, other Hamburg banks started giro traffic, which, however, was reserved for large Hamburg companies. With the establishment of the Deutsche Reichsbank in 1875, giro traffic expanded across the entire Reich, but was largely reserved for large companies and wealthy citizens. The Deutsche Reichspost , founded in 1871, changed this situation. "The post office was supposed to be the bank of the 'little man' who could not use the Reichsbank's giro facilities because of the high minimum balance of 1,000 marks." In 1876, the Reichspost proposed to the Reichstag to introduce postal transfers and checks, but the idea initially met with resistance. Political and financial circles feared that the Post would make the existing savings banks and other credit institutions too great competition. In 1885, a first draft law to introduce postal checks was rejected. The Reichstag announced requests for changes: The postal check credit should not bear interest, and the fees should be relatively high so as not to dispute customers with other banks. It was not until May 7, 1908, that the Reichstag approved the introduction of postal checks. From 1906 the PTT offered Switzerland current accounts under the name Postscheckdienst . On January 1st, 1909, 13 post office checkpoints in the German Reich started operations at the same time. The postal check offices in Hanover and Hamburg opened in northern Germany.

Before the widespread introduction of the modern current account, wages and salaries were paid in cash in wage bags . Rent and other running costs were paid in cash . For reasons of rationalization, authorities and large and medium-sized companies increasingly asked civil servants, employees and workers at the end of the 1950s to have their wages or salaries paid out to a bank account. From 1957 onwards, cash wages and salaries in the form of a wage packet were displaced in Germany because more and more companies and local administrations began to transfer wages and salaries without cash. The basis for this were the advances in banking automation , the increasing computerization of which made it possible to deal with the desired mass business. As early as 1958, there were around 4.7 million current accounts in the savings bank organization. A book by Karl Weisser was published in 1959 with the title Cashless wages and salaries . The big banks discovered private customer business in the 1950s and began to set up wage and salary accounts on a large scale. The Postscheckamt Hamburg, at that time the largest in the Federal Republic of Germany, introduced an EDP-supported standing order service for the first time in 1961. According to the Bundesbank, there are now almost 100 million current accounts registered in Germany, of which more than half have been managed as online accounts via electronic banking since 2011 . In the Federal Republic (West Germany), because of institutional discrimination, women were only allowed to open their own checking accounts independently from 1962 and from then on they were only allowed to dispose of their money independently. In the GDR (East Germany) this was already permitted and possible from 1949 onwards, due to the complete equality of men and women in all areas, which was implemented legally and enshrined in the constitution!

Legal bases

The current account is to be legally qualified as a current account, i.e. an account in current account according to § 355 HGB , in which a balance is determined daily to which one of the two parties involved is entitled. At least one of the two parties must be a businessman ; this characteristic is already fulfilled by credit institutions because they operate a commercial trade according to § 1 Paragraph 1 HGB.

The regulations on giro contracts ( § 676f and § 676g BGB old version ) that have been in effect since January 2002 - and changed in October 2009 - also contained provisions on giro accounts. After that, the current account is a central component of the current account. Because according to the legal definition of the giro contract in § 676f BGB a. F. the bank is obliged to set up an account for the bank customer, to credit incoming payments to the account and to process concluded transfer agreements via this account. In addition, the customer, as the beneficiary of a transfer, must provide the information on the person making the transfer and the purpose of the transfer that is forwarded with this transfer. The current account can also be set up for minors with the consent of the legal guardian (see youth account ).

As of October 31, 2009, the law of payment transactions was standardized across Europe as part of the implementation of the EU Payment Services Directive. The giro contract and the most important payment services ( transfers , direct debits and card payments ) have now been regulated in Sections 675c to 676c BGB and in the Payment Services Supervision Act (ZAG). Credit institutions can now agree with their customers that payment transactions will only be made according to the so-called customer identification - account number and bank code or international bank account number (IBAN) and BIC - and that the name of the recipient of the transfer / direct debit will no longer be taken into account. The new law also regulates questions of liability and evidence and introduces a large number of new terms. Before concluding a payment service framework contract (sub-forms of this are: giro contract, debit card contract, credit card contract or online banking / telephone banking contract), the customer is entitled to receive extensive pre-contractual information ( Art. 248 § 4 EGBGB ). During the term of the contract, changes to the terms and conditions of the contract and fees must be offered to consumers with an objection period of 2 months ( Section 675g BGB). Long periods of notice to the detriment of consumers are no longer permitted ( Section 675h BGB).

In Germany, however, the provision of Section 675f of the German Civil Code (BGB) does not establish any obligation to enter into a contract for credit institutions, namely neither upon conclusion of the giro nor the transfer agreement. Contrary to popular belief, many savings banks in Germany are not obliged to contract; the bank may refuse to open an account. In France and Belgium, in contrast to the legal situation in Germany, Austria or Switzerland, there is an obligation to contract.

In addition to these statutory provisions, there are numerous regulations on the management of current accounts in the general terms and conditions of the credit institutions . In the course of the adjustment to the new payment service law, the general terms and conditions and special conditions z. B. changed for bank transfers with effect from October 31, 2009. There it is first made clear that current accounts are to be regarded as current accounts within the meaning of Section 355 of the German Commercial Code (HGB), for which financial statements are drawn up after agreed periods of time. Objections to this must be received by the institute within 6 weeks. Furthermore, cancellation booking and mutual offsetting rights are regulated in the GTC. A termination of the current account is possible for the customer at any time without observing a notice period. A bank may not charge any fees for this. The account-holding bank also has the option of terminating the account because it is unreasonable, but has to comply with a period of 6 weeks for ordinary termination, or to take the customer's concerns into account, in particular not to terminate at an inopportune time. The continuation of a bank account becomes unreasonable if

the customer misuses the services of the credit institution, in particular for illegal transactions, e.g. B. Fraud , money laundering, etc. a.,
the customer provides false information that is essential for the contractual relationship,
the customer grossly harasses or endangers employees or customers,
the intended use of the account to participate in cashless payment transactions is not given because z. B. blocked the account through actions have executed Direction creditors (see account garnishment ) or a year is out for umsatzlos,
it is not ensured that the institute will receive the usual fees agreed for the account management and use or
the customer also fails to comply with the agreements.

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 current account are therefore usually also acts to establish or fulfill the stated obligations or individual obligations arising from them. In the case of current accounts with credit balances, cash payments represent the return of the money held in custody for the customer ( Section 688 BGB) and cash payments 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).

Everyone account

The growing importance of current accounts in the context of a modern economy triggered a recommendation by the Central Credit Committee (ZKA; today Die Deutsche Kreditwirtschaft ) in 1995 that all credit institutions should provide every citizen with a current account on a credit basis that does not have an overdraft ( colloquially: credit account) is permitted. According to the savings bank laws, only savings banks have so far been obliged to contract when opening current accounts. Section 31 of the Payment Accounts Act (ZKG), which implements the Payment Accounts Directive, has established a legal right to maintain a so-called basic account for the execution of payment transactions also with private banks as well as Volksbanks and Raiffeisenbanks for all consumers, including people without a permanent address, since June 1, 2016 .

Garnishment protection account (P account)

On July 1, 2010, a reform of the protection against attachment was resolved. The so-called seizure protection account (P account) formed the core of the law on account attachment that has been in effect since then . In the opinion of the Federal Government of April 7, 2011, which regards the protection of account attachment as “significantly improved”, no further legal changes were initially planned. On April 15, 2011, the amendment to the law was passed to solve the so-called beginning of the month problem.

Single or joint account

With an individual account there is only one account holder, while with joint accounts at least two account holders with equal rights are authorized to dispose of. 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.

Giro contract

A current account must be concluded to set up a current account. The terms and conditions are part of the contract, the customer accepts the terms and conditions by signing the contract. The giro contract is called a payment service framework contract in legal terminology and is a continuing obligation . With the giro contract, the bank undertakes to set up an account for the customer, to credit incoming payments to the account and to process concluded transfer agreements to the detriment of this account ( Section 675f sentence 1 BGB). In relation to the agency agreement, it is a lex specialis with priority effect. If there is a giro contract, at least Sections 675f and 675g BGB must be observed. In addition - for example in Check collection or refund of direct debits - need to before the provisions of such agency agreement be drawn. The account is managed according to the principles of commercial bookkeeping in accordance with Section 238 HGB. The bank has to prove the management of the account by postings and account statements . The accounting statements comprise both credits (incoming payments) and debits (transfers, standing orders , loads of others). The giro contract is based on the payment service law that has been in force since November 2009 , which is largely not mandatory ( Section 675e (1) BGB); Exceptions exist in particular for foreign currencies ( Section 675e Paragraph 3 BGB) and for bank customers who are not consumers ( Section 675e Paragraph 4 BGB).

Payment transactions

Section 675f (1) of the German Civil Code (BGB) regulates the main obligation of the credit institution in the context of a giro contract, namely the execution of a payment transaction. A payment process is any provision, transmission or withdrawal of a sum of money ( Section 675f (3) BGB). In abbreviated and simplified terms, payment services mean all payment methods for cashless payment transactions such as transfers, direct debits and (credit) card payments. Theaccount holder can send the payment order directly, as a "push" payment initiated by him (e.g. bank transfer , standing order or financial transfer) or indirectly via the payee , as a "pull" payment initiated by the recipient (e.g. direct debits or credit card payments ), be granted. Transfers represent legally dependent instructions from the bank customer to the credit institution within the framework of the payment service contract. The transfer contract is an independent form of business management. The legal basis for this is §§ 675c to 676c BGB, which apply to domestic transfers, transfers to a country of the European Union , a contracting state of the European Economic Area and a non-EU country. However, the issuing of a direct debit authorization in the conventional German direct debit authorization procedure does not indicate a payment order from the payer to his payment service provider. According to the predominant literature opinion and the approval theory of the BGH , the direct debit authorization - as long as the payer has not approved a debit - is an unauthorized payment.

An institution may refuse to execute a payment order if the requirements specified in Section 675o BGB are met. This includes, in particular , insufficient funds in the account if the credit or credit line is insufficient to carry out the transfer and the bank does not want to allow a "tolerated overdraft " in accordance with Section 505 (1) BGB. If it does not make use of this, it must carry out the transfer within the deadlines of Section 675s BGB.

The bank managing the account, as the payment service provider of the payee and account holder, is obliged in accordance with Section 675t Paragraph I BGB to make the payment amount available to the payee immediately after it has been received on the payment service provider's current account.

Fees and Interest

The case law has dealt with many fees related to the use of the current account. Bank balances on current accounts usually bear little or no interest. The debit interest for the use of loans (approved credit lines or tolerated overdrafts) are based on the respective price notice. In contrast, the interest on an overdraft is relatively high, it is usually between 5 and 15 percent, on average just under 12 percent according to the financial test . Usually an account management fee is charged as a flat rate or per booking item . In some cases, a free current account is linked to conditions, such as regular receipt of money or pure online account management. A study by Stiftung Warentest in January 2012 showed that 25 of 177 account models are free as salary or pension accounts. Account management is usually free of charge for pupils, students and trainees.

Usually, credit institutions are not allowed to charge any fees for the fulfillment of secondary contractual obligations ( Section 675f (4) sentence 2 BGB; corresponds to No. 12 (3) AGB-Banken and No. 17 (4) AGB-Sparkassen); however, the law expressly allows exceptions. Such an exception is the immediate notification of the customer in the event of a justified rejection of a payment order ( Section 675o Paragraph 1 Clause 4 BGB). Here, the bank may effectively agree a fee through its terms and conditions (with reference to the price list). However, this only applies without restriction to direct debits in the debit order procedure and according to the SEPA direct debit procedure. For the notification of "old" direct debits in the direct debit authorization procedure, no fee can be charged, even under the new legal situation, as there is usually no "authorization" by the payer and § 675o BGB only speaks of "authorized" direct debits.

Situation in Austria

In Austria, too, there is a gross imbalance between savings interest and overdraft interest. Compared to Germany, the interest rates for overdrafts in Austria are on average 2% higher. If the overdraft limit is exceeded, there is a risk of interest rates of 13 to 16.7% with a calculated default risk of 0.2%. In comparison, the maximum value for savers was 1.4%. The borrowing rates are with a peak around the 11.7% compared very high. One factor in the amount of overdraft interest is creditworthiness; if the credit rating is poor, there is a risk of significant interest rate increases.

On November 1, 2009, the ZaDiG (Payment Services Act) came into force in Austria. The European Payment Services Directive 2007/64 / EC was thus implemented. Previously, permanent fees and account management fees were subject to a “regulated price adjustment” (since 2002), which was mostly based on the consumer price index. This regulation contradicts the new ZaDiG, also in Austria an automatic contract change is only allowed for interest rates and exchange rates. The annual index adjustment was also recognized as inadmissible by the Supreme Court - see 1Ob244 / 11f and 3Ob107 / 11y. The new regulation stipulates that the account holder must be notified of changes to fees and increases in fees up to a period of 2 months before they come into effect. The notification must be made in writing; electronic notification on a permanent data carrier (e.g. e-mail) is only permitted with the consent of the account holder. This notification must inform the account holder that a free and immediate right of termination is granted. Tacit consent is only permitted after a corresponding agreement with the respective bank; in fact, almost every Austrian bank has a corresponding clause anchored in their terms and conditions. These regulations apply not only to the current account, but to all payment service contracts. The then newly introduced general terms and conditions of Austrian banks are to be viewed critically, consumer protection and consumer rights authorities repeatedly refer to them.

termination

According to Section 675h BGB, the current account can be terminated at any time without observing a notice period (termination without notice). Something else only applies if a period of notice has been expressly agreed. The agreed period of notice may not be more than one month.

Bank's right of termination

The bank, on the other hand, must comply with a notice period of at least two months.

A termination by the bank is also only effective if such a termination right has been included in the giro contract with the bank. In addition, public-law credit institutions within the framework of municipal sponsorship i. d. Usually give a reason for the termination and may not in any case withdraw the account of the person concerned without a serious breach. If, according to No. 26, Paragraph 1 of the Sparkasse General Terms and Conditions, termination is given without reason, the termination is already due to the prohibition of arbitrariness i. V. m. Art. 3 GG void. In the literature this is justified with the principle of equality, which all public law institutes must adhere to within the framework of the Basic Law .

The savings banks have absolutely no right of termination on the part of the bank for credit accounts or specially equipped accounts that are essential for public services (cf. § 5 of the Savings Bank Act for the State of North Rhine-Westphalia).

For a long time it remained open in which form private credit institutions could terminate the giro contract of their own accord. In this regard, the Federal Court of Justice ruled in January 2013 that the ordinary termination of a giro contract in accordance with No. 19 (1) AGB-Banken (2002) does not require a balancing of interests, according to which the contractual relationship must be terminated with the customer's interests in its continued existence.

use

Current accounts can be used by all instruments of national and international cashless and cash payment transactions. For this purpose, there is a general compulsory form within the scope of the customer's duty of cooperation and due diligence. According to this, the forms approved by the account-holding institute are to be used, in particular for payment transaction purposes. This includes cash withdrawals, cash deposits, transfers , direct debits , standing orders or securities orders . Most orders must be in writing, via online banking or self-service terminals . Due to time constraints, orders in the securities business are also permitted by telephone . The use of debit cards processed via the current account, such as the girocard with Maestro or V Pay function and customer card , is widespread .

In general, without special agreements, disposals within the framework of payment transactions must be covered by account balances or free credit lines. This also required the transfer right of Section 676a, Paragraph 2, Clause 3 of the German Civil Code (old version ), which was valid until 2009 , according to which sufficient credit had to be available to carry out the transfer. The coating of the account is when the credit or expressly approved credit line is not sufficient for these decrees, the decrees are yet executed by the bank. According to the new law, it is a so-called tolerated account overdraft ( § 505 BGB). Expressly granted loans in particular overdraft facilities ( "MRP") and overdrafts that are contractually agreed.

Bank statements and financial statements

As part of the giro contract, the bank has to fulfill information obligations towards the customer ( § 666 BGB), which it fulfills by listing the booking processes, including those involved and the purpose in the form of a bank statement or bank statement printer . The account statement is also available in online banking . At regular intervals (usually quarterly), an account is closed in which interest and fees are debited or credited.

The bookings are based on claims and obligations of the customer. The value date for these postings is the banking day on which the calculation of interest is based on crediting or debiting an amount on a current account. In the case of credits, it is the business day on which the amount was received by the bank ( § 675t Paragraph 1 BGB), in the case of debits it is the day of the booking at the earliest ( § 675t Paragraph 3 BGB).

Legitimation check

As part of the account opening application (usually with Schufa clause), which forms the basis of the giro contract, there are two legal obligations for financial institutions in Germany when opening a new giro account that affect the identity of the owner.

According to § 154 AO , a legitimation check is required, which gives the credit institutions certainty about the name and address of the person entitled to dispose. Because nobody is allowed to open an account in a false or fictitious name for themselves or a third party.
According to Section 10, Paragraph 1, No. 2 of the GwG , a declaration of beneficial ownership must be submitted each time an account is opened. The customer then assures that the account is opened for his own account (account for his own or third-party account).

For this purpose, a valid identity card or a passport (partly with confirmation of registration) must be presented. In the case of foreign citizens, a residence permit and work permit must also be presented. Legal persons , such as a GmbH or a registered association, prove their legal capacity by means of appropriate documents (articles of association or commercial register ). The power of representation of the board of directors, managing directors, personally liable partners is based on the legal requirements and must be proven accordingly.

The actual identification takes place by establishing the name on the basis of the identity card or passport as well as the date of birth and the address, as far as they are contained therein. In addition, the type, number and issuing authority of the official ID must be determined. The institute must note this information. According to Section 8 (2) sentence 2 of the GwG, the documents submitted to establish identity must be copied. Banks either carry out the legitimation check themselves or they use the Postident procedure of Deutsche Post AG .

Web links

Wiktionary: current account - explanations of meanings, word origins, synonyms, translations

References and comments

↑ Michael North: Communication, Commerce, Money and Banks in the Early Modern Era . 2000, p. 49, ISBN 3-486-56477-3

^ Post director Wilhelm Meinken, Hamburg

↑ Deutscher Sparkassen- und Giroverband: On the history of the savings banks in Germany , No. 45 from December 2010, p. 17 f. (PDF; 1.2 MB)

↑ Karl Weisser, Cashless wage and salary payment: How it is carried out in practice , 1959

↑ In 1960 there were only about 2 million current accounts, in 1996 there were already about 80.4 million accounts; Deutsche Bundesbank: Payment Systems in EU , January 1998, p. 26

↑ Bundesbank ( Memento of May 8, 2015 in the Internet Archive ) Payment transactions and securities settlement statistics in Germany 2009 - 2013

↑ https://www.mz-web.de/panorama/gleichrechtigung-in-deutschland-alles-ganz-normal--23545178

↑ http://www.verfassungen.de/ddr/verf49-i.htm

↑ The savings bank ordinances of the new federal states as well as Bavaria, North Rhine-Westphalia and Rhineland-Palatinate provide for an obligation to keep current accounts. However, the obligation does not apply if the account management is unreasonable for the Sparkasse.

↑ No. 7 to 15 AGB Sparkassen

↑ No. 19 AGB banks

↑ No. 26 AGB Sparkassen

↑ Recommendations of the Central Credit Committee to the credit institutions ( Memento of February 12, 2009 in the Internet Archive )

↑ BGHZ 124, 254, 257.

^ BGH WM 1993, 2237.

↑ Art. I of the Act to Implement the Directive on the Comparability of Payment Account Fees, Switching Payment Accounts and Access to Payment Accounts with Basic Functions of April 11, 2016 ( Federal Law Gazette I p. 720 )

↑ Directive 2014/92 / EU on the comparability of payment account fees, switching payment accounts and access to payment accounts with basic functions of July 23, 2014 Official Journal of the European Union L 257/214 of August 28, 2014

↑ Basic account and noise protection: These are the changes as of June 1, t-online, May 31, 2016

↑ Federal Ministry of Finance : Questions and Answers on the Payment Accounts Act / Basic Account October 28, 2015

↑ Bundestag printed matter 17/5411 (PDF; 99 kB)

↑ German Bundestag, rights of the customer with the seizure-protected account "significantly improved" ( Memento from September 6, 2011 in the Internet Archive )

↑ BGH WM 1996, 249, 250.

↑ BGH NJW 2002, 3695

↑ Anthony Jonetzki, legal framework of innovative payment systems for the Internet , 2010, p 90

↑ Dorothee Einsele, Banking and Capital Markets Law , 2006, p. 40

↑ Bundestag printed matter 16/11643 of January 21, 2009, p. 102

↑ BGH NJW 2006, 1965: Approval theory for direct debit authorization

^ Stiftung Warentest: Comparison of overdrafts , in: Finanztest, Issue 11/2012, pp. 12–15 and online at test.de

↑ Stiftung Warentest: Current accounts in the test , in: Finanztest, issue 02/2013, pp. 12-20 and online at test.de

↑ Situation of overdraft interest in Austria (accessed on August 22, 2013)

^ Savings interest - overdraft interest Austria ( Memento of April 29, 2014 in the Internet Archive )wirtschaftsblatt.at, September 5, 2013, last accessed July 25, 2016.