Reminder (Germany)

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A reminder , also referred to as a payment reminder in the case of payment claims , is the specific and unambiguous request from the obligee to the debtor to provide the owed and due service . It is done unilaterally by the obligee and must be received by the debtor.

purpose

The reminder is usually (in addition to the existence of a mature claim of a contractual relationship and non-performance despite opportunity by the debtor) requirement for the delay of the debtor ( § 286 , para. 1, sentence 1 BGB ). It serves to protect the debtor so that he can avert the negative consequences of default.

shape

The reminder must be received by the debtor to be effective; however, it is not tied to a specific form .

"Any clear and specific request with which the obligee unequivocally expresses that he demands the performance owed is sufficient as a reminder to justify default."

- Federal Court of Justice, official guiding principle, NJW 1998, 2132

The reminder must relate precisely to the service owed in terms of scope, place of performance and manner. The word “reminder” does not have to be mentioned, so that, for example, a so-called “reminder” is also a reminder. On the other hand, the request for notification of when performance can be expected is not a reminder. In addition, it is not necessary to set a deadline or threaten certain consequences in the event of non-performance.

scope

If the creditor warns of an insufficient amount in relation to the actual debt, the default occurs only in relation to the portion of the reminder. If the reminder covers more than is actually owed or if something different is reminded, it depends in the individual case whether the debtor can recognize from the reminder by interpreting which service he has now been asked to provide.

Additional special features for monetary claims

If a monetary claim is issued, the amount requested must be quantified in the reminder. The only exceptions to this are the cases of a step warning in which the amount of the claim is still undetermined, but at the same time there is a due right to information (for example, in the case of a claim to a compulsory portion ) as well as claims for pain and suffering if sufficient concrete facts are provided from which the Can calculate the amount of the claim.

time

The reminder is only effective if it is actually given after the due date has occurred. Deviations from this can only be made if the action that leads to the due date of the claim is combined with the reminder. For example, the reminder can be linked to the invoice .

Reminders for claims that are not yet due are only possible for future installments in the case of long-term obligations and maintenance payments .

consequences

At the latest after receipt of a reminder, the debtor will be in default in the event of further non-performance, despite the possibility.

The consequences of a dunning letter are also achieved by filing a performance suit or the delivery of a dunning notice in the dunning procedure (Section 286 (1) sentence 2 BGB).

In the case of transactions between merchants , interest can also be demanded without a reminder ( Section 353 sentence 1 HGB ).

Default without a reminder

Exceptions to the need for a reminder

A reminder as a prerequisite for the debtor's default is dispensable if

  • a time according to the calendar is clearly determined by contractual agreement with the debtor for the performance (Section 286 (2) No. 1 BGB). This can be achieved, for example, by using formulations such as "performance on May 15th" or "performance in the 20th calendar week". In this case, the debtor knows the time of performance through the previous agreement, so that he does not need the protection of the reminder.
  • a contractual agreement with the debtor can be used to calculate a reasonable time for the performance after a previous event (Section 286 (2) No. 2 BGB). The event that lies in the future can be, for example, the delivery or receipt of the invoice . The appropriate time is then calculated from this event on with the help of a calendar. This case can be achieved, for example, by using formulations such as “service within 14 days of delivery” or “service within two weeks after receipt of the invoice”. In this case, too, the debtor no longer needs the protection of the reminder, insofar as the agreed time, which remains after the occurrence of the event, is appropriate.
  • the debtor expressly and unequivocally finally refuses to perform (Section 286 (2) No. 3 BGB). Statements such as: “You won't get anything from me” make a reminder pointless, the delay occurs immediately with the refusal.
  • taking into account the interests of both parties, the immediate occurrence of the delay is justified (Section 286 (2) No. 4 BGB). These include a.
    • those cases that justify the immediate occurrence of default due to a particular urgency ( § 133 , § 157 BGB). In these cases, the debtor is aware that he is prompted to perform immediately and that failure to perform will have consequences (for example, if he promises to repair a broken water pipe immediately).
    • the return debit , which is a negligent breach of duty by the debtor ( BGH , March 8, 2005, XI ZR 154/04 ). The direct debit agreement is an express agreement that results in the debtor having to hold the debt amount ready in the form of sufficient cover on the relevant current account at the due date .
    • the self-warning in which the debtor behaves in bad faith ( § 242 BGB). This is the case if
      • the debtor keeps the creditor from issuing reminders through constant new performance promises and / or untrue statements (for example: "The delivery will be out on Monday," or "The transfer was made today.").
      • the debtor withdraws from receiving the reminder by constantly changing his place of residence .
      • the debtor has knowingly performed a different service than the one requested and nevertheless does not perform the requested service.
    • the cases that are based on an unlawful act according to the legal principle for semper in mora (cf. § § 848  f. BGB). Because of elementary considerations of justice, anyone who illegally obtains an item is automatically in default.
  • a reminder is expressly or implicitly waived through an individual agreement (for example in document collection in the case of the English “cash against documents” agreement ) (Section 286 (5) BGB). The reminder cannot, however, be waived by general terms and conditions ( § 309 No. 4 Var. 1 BGB).

30-day period for invoices for payment claims

The debtor of a payment claim is in arrears - without having to be reminded - no later than 30 days after the due date and receipt of an invoice (or equivalent payment schedule) (Section 286 (3) sentence 1 1st HS BGB). In this case, the corresponding requirements of the reminder must be complied with for the invoice . If the debtor is a consumer ( § 13 BGB), he must have been specifically informed of this consequence in the invoice (or equivalent payment schedule) (§ 286 Paragraph 3 Clause 1 2nd HS BGB). The creditor can, however, bring about the default earlier by issuing a reminder; Similarly, the default occurs earlier if the need for a reminder no longer applies .

If the debtor is not a consumer, the default occurs insofar as an invoice (or equivalent statement of payment) has been received by the debtor, but the time of receipt is uncertain, no later than 30 days after the due date and receipt of the consideration (Section 286 (3) sentence 2 BGB ).

Statute of limitations

A reminder does not prevent the statute of limitations of the claim ( § 203  ff. BGB), nor does it start the statute of limitations again ( § 212 BGB).

Not a declaration of intent, but a business-like act

Although a reminder is not a declaration of intent (the consequences of the reminder are not based on the will of the obligee, but are determined by the law), but an act similar to a business , the regulations for declarations of intent are applicable analogously (BGH, 17 April 1967, II ZR 228/64 ). This means that the reminder of a person incapable of doing business is null and void ( Section 105 (1) BGB). In contrast, the reminder of a person with limited legal capacity (exclusively legal advantage) is effective upon receipt by the debtor ( § 107 , § 110 BGB).

costs

scope

Reminder costs represent damage caused by delay as costs of legal prosecution, for which the creditor can demand compensation (§ § 280 Paragraph 1, 2 in conjunction with 286 BGB). The costs of the first reminder are therefore not reimbursable as long as the default has not already occurred due to the exceptions , because the debtor's default does not start until this reminder is received.

In order for dunning costs to be reimbursed, the dunning notice associated with costs must be appropriate and necessary from an economic point of view of a sensible believer. The material damage is eligible for reimbursement, for example material and printing costs as well as postage in the case of a reminder sent as a letter .

The time spent by a obligee is not reimbursable, regardless of whether the activity is carried out by its own staff , because this expenditure is always added to the obligations of the obligee.

Dunning costs in the general terms and conditions

There is no permanent supreme court ruling on the permissible amount. Different views are represented, especially in the literature. According to the general principles of presentation and burden of proof, however, the injured party bears the burden of presentation and proof for the type and extent of the damage suffered.

The user must therefore demonstrate within the scope of Section 309 No. 5 a BGB and, if necessary, prove that the flat rate corresponds to the typical scope of damage. This is the prevailing opinion in jurisprudence and literature. The agreement of a lump sum that exceeds the damage to be expected in the ordinary course of events is ineffective.

The costs that can usually be expected include the costs for the reminder letter and the costs for the warning staff (approx. 2.50 to 4 euros). However, the creditor's own costs for the reminder letters or visits to the lawyer (only so-called loss of leisure time) are not reimbursable. In addition, the further proven damage caused by delay, such as the fees for a lawyer commissioned or interest on arrears, can be demanded if the user of the GTC has expressly reserved the right to prove higher damage in the contract.

The Federal Court of Justice (BGH) considers a flat rate of 15 € per warning letter set by the General Terms and Conditions (AGB) to be inappropriate and therefore ineffective, in any case without evidence of special cost-increasing circumstances.

In the case law of the higher regional courts (OLG), lower dunning costs have already been declared excessive and thus ineffective:

  • In 2011, the Munich Higher Regional Court (OLG Munich) declared a flat-rate reminder fee from the Stadtwerke of € 5.00 to be ineffective. In the opinion of the Munich Higher Regional Court, the expected dunning costs after the normal course of events amounted to just a little more than € 1.20 per dunning letter.
  • In 1991, the Hamm Higher Regional Court (OLG Hamm) found a lump sum for dunning costs for a fitness studio and a sports center of DM 5.00 to be null and void. In the opinion of the court, the usual material and postage costs did not exceed DM 2.00.
  • In 1987 the Hanseatic Higher Regional Court (OLG Hamburg) also classified a lump sum for dunning costs of DM 5.00 as inappropriate. At that time, the bank involved was only able to provide evidence of DM 1.00 in costs per reminder.
  • In 1988, the Stuttgart Higher Regional Court (OLG Stuttgart) also found a DM 5.00 lump sum for dunning costs to be inappropriate.
  • In contrast, the Cologne Higher Regional Court (OLG Cologne) considered DM 5.00 plus postage to be reasonable in 1987. However, contrary to the prevailing opinion, it also took into account the costs of operating the EDP system.

For a reminder due to an enforceable monetary claim under the Administrative Enforcement Act (VwVG), a reminder fee in the amount of half a percent of the reminder amount, however at least 5 euros and at most 150 euros ( Section 19 (2), Section 3 (3) VwVG).

See also

Web links

Wiktionary: Reminder  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Helmut Heinrichs : Palandt : Bürgerliches Gesetzbuch . Ed .: Otto Palandt (=  Beck's short comments . Volume 7 ). 64., rework. Edition. CH Beck , Munich 2005, ISBN 3-406-52604-7 , § 286 Rn. 16 .
  2. ^ A b c André Berbuer, Tobias Kröger, Frank Hofmann: Dunning costs as damage caused by delay: design options and legal limits. (PDF; 101kB) In: zjs-online.com. ZJS , 2014, pp. 9–15 , accessed on May 7, 2017 (2014/01 edition).
  3. ^ A b c d e f g h i j Jacob Joussen : Law of Obligations I - General Part (=  Winfried Boecken , Stefan Korioth [Hrsg.]: SR - Law Studies Series ). Kohlhammer Verlag , Stuttgart 2008, ISBN 978-3-17-019563-9 , pp. 197 ff . ( limited preview in Google Book Search [accessed April 30, 2017]).
  4. ↑ a b c d e f g h i j Helmut Rüßmann : Reminder. In: jura.uni-sb.de. Saarland University , June 4, 2004, accessed April 30, 2017 .
  5. ↑ Philipp Sick: Arrears of creditors in direct debit? (PDF; 348 kB) Express direct debit agreement and debtor default. In: nomos.de. Neue Justiz , November 2011, p. 442 , accessed on May 2, 2017 .
  6. ↑ BGH, January 18, 1979, VII ZR 165/78 ; Munich Higher Regional Court , July 28, 2011, 29 U 634/11
  7. ^ Christian Grüneberg : Palandt: Bürgerliches Gesetzbuch . Ed .: Otto Palandt (=  Beck's short comments . Volume 7 ). 72., rework. Edition. CH Beck, Munich 2013, ISBN 978-3-406-63000-2 , § 286 marginal no. 45 f. .
  8. ^ A b Christian Grüneberg : Palandt: Bürgerliches Gesetzbuch . Ed .: Otto Palandt (=  Beck's short comments . Volume 7 ). 72., rework. Edition. CH Beck, Munich 2013, ISBN 978-3-406-63000-2 , § 249 marginal no. 59 f. .
  9. ↑ BGH, NJW 1976, 1256  (1258); OLG Dresden , NJW-RR 1994, 1139  (1140)
  10. ↑ cf. BGH NJW 1977 p. 381 on the legal situation before the AGBG came into force; Left open, for example, BGH NJW-RR 2000, p. 719 and NJW 1982, p. 33 f each to Section 11 No. 5 AGBG
  11. ↑ Ulmer / Brandner / Hensen - Fuchs § 309 No. 5 marginal note 23; Wolf / Lindacher / Pfeiffer - Dammann § 309 marginal number 82 ff.
  12. ↑ Hanseatic Higher Regional Court, decision of June 25, 2014 - 10 U 24/13
  13. ↑ OLG Schleswig MDR 2013, p. 579; Higher Regional Court Brandenburg, MDR 2012, p. 391, BGH NJW 1977, p. 381
  14. ↑ Palandt / Grüneberg, § 309 marginal note 29 f, MüKo Wurmnest, § 309 no. 5 marginal note 16; Erman-Roloff § 309 No. 5 marginal number 48 f.
  15. ↑ Elisabeth Keller-Stoltenhoff: When and in what amount: can online retailers bill consumers for dunning costs? January 19, 2012
  16. ^ BGH, judgment of November 3, 1999 - VIII ZR 35/99, Neue Juristische Wochenzeitschrift - Juristic Report (NJW-RR) 2000, p. 719 (p. 720).
  17. ↑ OLG Munich, judgment of July 28, 2011 - 29 U 634/11, openJur 2012, 70453 .
  18. ↑ OLG Munich, judgment of July 28, 2011 - 29 U 634/11 -, juris, margin numbers 53 and 59 (= openJur 2012, 70453 , margin numbers 67 and 73).
  19. ↑ OLG Hamm, judgment of 10.10.1991 - 17 U 2/91, Neue Juristische Wochenzeitschrift - Jurisprudence Report (NJW-RR) 1992, pp. 242–243.
  20. ↑ OLG Hamm, judgment of December 16, 1991 - 17 U 109/91, Neue Juristische Wochenzeitschrift - Jurisprudence Report (NJW-RR) 1992, pp. 444–445.
  21. ↑ OLG Hamm, judgment of December 16, 1991 - 17 U 109/91, Neue Juristische Wochenzeitschrift - Jurisprudence Report (NJW-RR) 1992, p. 444 (p. 445); OLG Hamm, judgment of 10.10.1991 - 17 U 2/91, Neue Juristische Wochenzeitschrift - Jurisprudence Report (NJW-RR) 1992, p. 242.
  22. ↑ a b OLG Hamburg, judgment of April 29, 1987 - 5 U 167/86, Neue Juristische Wochenzeitschrift - jurisprudence report (NJW-RR) 1988, p. 1449 (p. 1451).
  23. ↑ OLG Stuttgart, judgment of April 22, 1988 - 2 U 219/87, Neue Juristische Wochenzeitschrift - Jurisprudence Report (NJW-RR) 1988, p. 1082 (p. 1083 f.)
  24. ↑ OLG Cologne, judgment of 23.10.1987 - 20 U 233/86, Neue Juristische Wochenzeitschrift - Jurisprudence Report (NJW-RR) 1988, p. 174 (p. 175 f.)
  25. ↑ For example OLG Munich, judgment of July 28, 2011 - 29 U 634/11 -, juris, margin numbers 58 (= openJur 2012, 70453 , margin numbers 72); OLG Hamburg, judgment of April 29, 1987 - 5 U 167/86, Neue Juristische Wochenzeitschrift - jurisprudence report (NJW-RR) 1987, p. 1449 (p. 1451)