Performance time
In contract law, the time of performance is the point in time at which the contracting parties have to provide the service and consideration from a contract .
General
In particular, the purchase contract , but also the employment contract , service contract , loan agreement , lease or work contract come into question as contracts . In the case of a sales contract, for example, the seller's service consists in the delivery and handover of the goods and the buyer's consideration in the payment of the purchase price and acceptance of the goods. When these services are to be provided, it usually results from the delivery and payment conditions . When employment having working time and pay a service time, in contract for the acceptance of the work can and its compensation (as in a building contract ) for a long time after the conclusion of the contract are.
Legal issues
If nothing is agreed in the terms of delivery and payment, the services are to be provided immediately in accordance with Section 271 (1) BGB , step by step ( Section 320 (1) BGB). “Immediately” means that the debtor has to perform the service at the moment his debt arises , unless otherwise stipulated by law or contractual agreement and the circumstances do not indicate otherwise. Immediately affects both the due date and the feasibility . A performance is due which the debtor has to fulfill at a certain point in time. Fulfillability, on the other hand, exists at a point in time from which the debtor may effect the performance. If the due date is postponed, immediate fulfillment is provided (Section 271 (2) BGB). In contrast to the immediacy , the law on "immediately" on a purely objective measures from.
The legal term performance time is of particular interest if the seller and buyer allow themselves a deadline for their performance in the delivery and payment conditions, i.e. do not want to perform their performance immediately. For the seller this is the delivery period , for the seller it is the payment period . If the two deadlines match, no particular legal questions arise because the “step by step” principle is still maintained. However, if the buyer or seller unilaterally grants the other contractual partner a period of fulfillment , then there is a risk of advance performance for him - which is not intended by law . Specifically, this risk with the delivery time for the buyer is that the buyer has to pay immediately, while the seller only has to deliver after payment. As with down payments or prepayments , this involves customer loans with the risk that the seller can no longer deliver (due to insolvency ) or will no longer deliver ( performance fraud ) and the buyer no longer receives his purchase price back ( performance risk ). Conversely , if the seller delivers immediately and grants the buyer a term of payment, it is a supplier credit for which the seller bears a payment risk.
Legal consequences
The performance time leads to legal consequences . It is important in the event of default of the debtor and the limitation period . Debtor's default is culpable non-performance despite the possibility , due date and reminder . It occurs if the seller does not deliver immediately or after the agreed delivery period or the buyer does not pay immediately or after the agreed payment period. The seller or buyer can in delivery or payment default by § 323 BGB from the contract withdraw and damages demand ( § 346 para. 4, § § 280 et seq. BGB, § 325 BGB) or any damages (damages for delay according to §§ 280 para. 1 and 2 BGB, in connection with § 286 BGB). If the delivery or payment date was fixed in the calendar, a grace period is not necessary (Section 286 (2) No. 1 BGB). In accordance with Section 199 (1) BGB, the limitation period begins at the end of the year in which the delivery or payment date has passed without fulfillment.
Risk management
The law only provides for an advance payment for a few types of contract. These include land or ship rental companies ( Section 579 BGB), persons obliged to pay service from employment relationships ( Section 614 BGB), entrepreneurs with contracts for work and services ( Section 641 Paragraphs 1 and 2 BGB) or custodians for payment ( Section 699 BGB). Employees must first perform their work before the employer pays wages or salaries for it. In the case of a work contract, the contractor has to pay in advance, as his remuneration is only due after the work has been performed. The regulation of § 16 VOB / B is also based on the contractor's obligation to perform in advance for work contracts. The tour operator must according to § 651t BGB Packages only accept payments or advance payments if, according to § 651R BGB a third guarantor ( credit institutions or insurance companies ) by payment guarantees the amount of the total price as a travel insurance certificate are hedged. The other advance performance risks can be covered by delivery , contract performance or payment guarantees in the form of bank guarantees or surety insurance.
Commercial law
According to Section 358 of the German Commercial Code (HGB) , performance can only be effected and demanded in commercial transactions during normal business hours .
Individual evidence
- ↑ Norbert Horn (Ed.), Commentary HGB , 2005, p. 305
- ↑ Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, § 271 Rn. 10
- ↑ Richard Riedl / Martin Rusam / Johann Kuffer, Handkommentar zur VOB , 2008, p. 1322
