Current account

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A current account ( Italian conto , invoice ' and corrente , running' ) is in the economy , the general form of the power management between creditors and debtors as part of a business relationship for the purpose of clearing mutual payments . This offsetting of mutual claims and liabilities results in a balance that can only be met by one business partner.

Essence and characteristics

In the case of a current account, a merchant has a permanent business relationship with another merchant or a non-merchant, from which mutual claims and liabilities can result. Instead of meeting each individual claim or liability in isolation when they become due , these claims or liabilities are continuously offset. From an economic point of view, the current account is therefore primarily used to simplify and standardize payment transactions . On the one hand, this reduces a large number of payment transactions to the settlement of a single excess claim, on the other hand, all claims are offset against each other regardless of their legal fate. In addition, the current account has a security function, because each current account partner can rely on the fact that his claims are constantly offset against counterclaims from the other side due to the ongoing business relationship. This limits the risk of non-compliance. By placing the individual claims in a current account, it is also ensured that third parties are largely denied access, as the current account agreement prevents the claims from being attached independently or from being asserted in court. However, the current account does not have a credit granting function. One of granted credit line, such as an overdraft or credit facility at the bank account on a regular basis is not based on a current account agreement, but on a separate loan agreement .

Legal bases

According to German commercial law ( § 355 HGB ) - in analogy, § 355 UGB applies in Austria and Art. 117 OR in Switzerland  - at least one contractual partner must be a merchant in a current account relationship . Furthermore, the balance of the current account must be determined at least once a year (in the financial statement). While § 355 HGB defines the current account and, as a special legal consequence, exempts from the compound interest prohibition of § 248 BGB , which is generally applicable outside of banks , § 356 HGB defines the fate of the claims and collateral of the claims placed in the current account and § 357 HGB the seizure of the Current account balance determined in more detail. The regulations of the HGB with regard to the current account are, however, incomplete . These gaps have been largely closed by legal literature and case law.

According to Section 355 (1) of the German Commercial Code (HGB) there is a current account if

  • there is a business relationship between the parties,
  • at least one party is a merchant,
  • a current account agreement was made, according to which
    • Services and claims are billed,
    • these are offset against each other at regular intervals and
    • the resulting excess is determined.

The current account necessarily consists of two parts of the contract.

Current account agreement

The current account contract is a mutual contract. One party assumes the current account obligations only in the event that the other party also undertakes. The current account agreement regulates the more detailed content of the business relationship and, among other things, clarifies the question of whether a balance should be settled or transferred to the invoice for the new period. It stipulates that the contracting parties have to assist in determining and recognizing the balance, and stipulates a number of secondary obligations, such as the obligation to provide information on account transactions.

Current account agreement

The current account agreement determines the set-off mode and turns the permanent legal relationship between the parties into a current account in the legal sense of Section 355 HGB. If, for example, a current account is missing the current account agreement, there may be an open invoice, but never a current account. A distinction is to be made between current accounts in the legal sense and current accounts within the meaning of Section 355 HGB. The first is to be understood as the legal relationship between the parties, which is necessary for the establishment of each current account relationship. The current account within the meaning of § 355 HGB, on the other hand, is the legal definition of the law for the application of § § 355 ff. HGB. In Section 355 (1) of the German Commercial Code (HGB), the legislature specified the current account exactly and defined its requirements. Sections 355 ff. HGB can only be applied if these are met .

interest

The law assumes interest is paid on the balance; however, it is not mandatory. If interest is provided, the determination of the balance is not only decisive for determining the mutual claims, but also for calculating the interest. To this end, the contracting parties must agree on the amount and calculation method of the interest. The interest is calculated using an interest scale . For this purpose, interest is paid on the credits and debits entered in the current account from the date of booking ( value date ) to the closing of the account, and the interest is part of the balance. In § 355 Abs. 1 HGB also be compound interest allows, for the balance interest can be calculated, "are also included in the bill as far as interest rates." Compound interest are otherwise generally by § 248 prohibited para 1 BGB. The only exception to the ban on compound interest is capitalized interest on deposits at banks (Section 248 (2) BGB).

Current account in business practice

The most common form is the bank current account of non-banks with a bank to process cashless (inter) national payments, including current account overdrafts . In addition, the current account is also common among banks in (inter) national interbank payment transactions and is called a nostro account or loro account . The current account between the clearinghouse (central banks or private companies) and clearing participants (mostly banks) is another method for processing cashless (inter) national payment transactions. The so-called company current account also occurs between (inter) national manufacturing companies that are in a permanent business relationship with one another and offset their mutual claims and liabilities cashlessly using current accounts.

Bank current account

The bank current account ( current account ) is a specific form of current account, a combination of a current account and a current account. In Section 7 No. 1 of the Sparkassen GTC it is made clear that current accounts represent a current account within the meaning of Section 355 ff. HGB. The bank current account is also made up of a current account agreement and a current account agreement within the meaning of Section 355 of the German Commercial Code (HGB ) on the basis of a current account . It is now recognized that the current account agreement is tacitly concluded, as the customer is aware when the contract is concluded that the bank will offset the mutual claims and create daily statements and financial statements. The peculiarity of the bank current account - compared to the purely commercial current account of § 355 HGB - is that the credits and debits on the account are continuously offset against each other and thus a balance is determined - the so-called daily balance: Either the debit balance of one is the credit balance of the other or vice versa. The current account agreement forms the framework for the current account relationship and is tacitly made when the account is opened after constant practice, taking into account the alleged will of the parties. This means that the current account agreement and the current account agreement represent a composite contract, meaning that the parties combine legally separable agreements in such a way that they form a unit for a legal assessment.

Suppliers

A current account is also common between mutual suppliers or service providers who have long-term business relationships that lead to a large number of mutual claims. These claims then do not have to be paid individually when they become due, but can be entered in a current account.

effect

The legal nature of the individual claims to be entered in the current account does not change, but their isolated assertion is no longer possible. Accordingly, they can not individually subject to a more assignment , pledge , account garnishment or set-off to be. The statute of limitations for claims is suspended analogously in accordance with § 205 BGB. If, however, a claim is filed independently, the objection of the current account commitment stands in the way of this. With the balance determined by offsetting, which has to be recognized by a legal transaction, an independent claim arises that can be assigned , pledged or attached independently .

Balance acknowledgment

The balance acknowledgment is a legal transaction in which a contracting party carries out the set-off at the end of a period (the claims are offset) and offers the determined balance for acceptance. According to the prevailing view today, the acknowledgment of the balance represents an abstract acknowledgment of debt within the meaning of Section 781 of the German Civil Code. The regular notification of the balance also applies as an application for the conclusion of an abstract acknowledgment of debt for the reported balance. This request is accepted by the other contracting party by declaring that the balance has been recognized. Since the balance acknowledgment according to § 780 BGB, § 350 HGB is not formal, the approval can also be implied . With the conclusion of this new contract, the previously existing claims expire by way of novation , and the abstract balance claim takes its place, which is interest-bearing due to the express arrangement of Section 355 (1) HGB. It can be assigned, pledged or attached.

See also

Web links

Individual evidence

  1. ^ Canaris: Commercial Law. § 27 I 5; K. Schmidt: Commercial Law. § 21 I 2a
  2. ↑ Römer: The Effects of the Current Account on the Liability of Resigned Partnership Partners. P. 13
  3. ^ K. Schmidt: Commercial law. § 21 I 2c.
  4. ↑ BGH WM 1985, 936, 937, which is based on the "crediting and deferral" of the claim by posting it in the current account
  5. ↑ This is the business relationship between two parties who are ready to conduct business on a permanent basis. Claims and services must be able to emerge from the business relationship. However, it is sufficient if claims arise for only one side or services are only provided by one side. For details of the business relationship, see Schlegelberger, Hefermehl: HGB. Section 355 Rn. 10; K. Schmidt: Commercial Law. § 21 II 2 a
  6. ↑ For the current account relationship among non-traders see K. Schmidt: Handelsrecht. § 21 II 2b
  7. ↑ According to the legal definition of Section 355 (1) of the German Commercial Code, the characteristic of periodicity is a prerequisite for the current account; so also BGH WM 1970, 184, 185. A deviating agreement to the effect that offsetting takes place continuously can, however, be made between the parties
  8. ↑ Heymann, Horn: HGB. Section 355 Rn. 8th; K. Schmidt: Commercial Law. § 21 II d
  9. ↑ on the content of the current account contract: see Canaris in GroßKomm. HGB. Section 355 Rn. 10
  10. ↑ Occasionally the current account agreement is also used as a generic term for the current account agreement and the business contract, for example at Canaris in GroßKomm. HGB. Section 355 Rn. 9; Schlegelberger, yeast flour: HGB. Section 355 Rn. 5
  11. ↑ Canaris in GroßKomm. HGB. Section 355 Rn. 9 f; K. Schmidt: Commercial Law. § 21 II 2d; For details on the relationship between the current account agreement and the current account agreement, see Peckert: The current account and the current account agreement . P. 10 ff.
  12. ↑ Canaris in GroßKomm. HGB. Section 355 Rn. 8th; Peckert: The current account and the current account contract. P. 10.
  13. ^ BGH WM 1991, 1630
  14. ↑ BGH WM 1970, 184
  15. ↑ BGHZ 80, 175
  16. ↑ BGH WM 1970, 184, 186
  17. ^ BGH WM 1982, 291
  18. ↑ The case law recognizes as an implied acknowledgment, for example, the continuation of current account transactions after the accounts have been closed (BGH WM 1958, 620) or the disposal of the credit (BGH WM 1956, 1126)