A moratorium is generally an agreement between the creditor and the debtor to temporarily refrain from or postpone debt servicing and specifically to a debtor granted by a state act of sovereignty or an intergovernmental agreement or issued for the state itself, limited payment deferral ( deferral ) with disposal or payment ban .
Most of the time, the term moratorium is associated with the cessation of payments by states or their political subdivisions (such as states , states or municipalities ). Other debtors in the affected state such as companies or natural persons can also be covered by the moratorium. If companies or natural persons find themselves in a crisis in isolation, without the state itself being involved, this is not a moratorium, but rather the insolvency or overindebtedness of these debtors.
A moratorium can be justified in times of war or during major economic crises to protect the state or debtors, even if it significantly disrupts the monetary and economic structure.
Under international law, a distinction is made between compulsory moratoria , through which countries with weak foreign exchange rates forbid debtors resident in the country to meet their foreign currency debts , and the internationally agreed deferral of public and / or private foreign debts. The state decrees a moratorium in an economic emergency either vis-à-vis abroad ( transfer moratorium or transfer freeze ) or domestically ( moratorium on raising funds ) by means of state sovereign acts . In the case of the transfer moratorium, the debtor's obligation to perform remains in place; they must make their payments in domestic currency to a blocked account at the central bank . Unilateral currency restrictions were expressly granted to members in Art. XIV of the IMF Agreement. A collection moratorium is based on the insolvency of microeconomic debtors in the state, whom the state wants to protect and therefore orders their payment obligations to be postponed. If a state unilaterally enacts a moratorium on its own debts, then there is a subtype of national bankruptcy .
Differentiation from bankruptcy
The moratorium generally refers to the agreement between the creditor and the debtor to postpone a due performance or to refrain for the time being. In the economy, it is about a temporary suspension of payments (of interest / loan repayments). The bankruptcy , however, is the final suspension of payments. In this case, creditors only have to reckon with payments in the event of an insolvency estate, unless they can assert segregation or segregation rights. In order to ward off this radical form of bankruptcy, attempts can be made to continue the company with a moratorium during the corporate crisis. Moratorium and insolvency set both - each for himself - a credit event is that when bonds or loan agreements , the possibility of termination of the creditor ( credit termination ) or credit default swaps trigger payment obligation of the guarantor.
The moratorium risk (see also country risk ) is the risk that a debtor country (which has to pay foreign loans or export deliveries, for example) cannot or does not want to make the contractually owed payments in foreign currency in accordance with the contract. There is then still no fundamental payment ban, only a state-induced deferral of payment. This is often practiced in a way that conserves foreign exchange, so that payments are only made in the same amount as payments from the other country. A certain sequence can be created for the outgoing payments or partial payments can be made. Negative declarations or pari passu clauses are agreed so that the debtor country does not unilaterally change the priority of payment . The moratorium risk can be covered as a political risk in the context of export credit insurance .
Moratoria were already known in Roman law ( Latin mora , "delay, delay"). The economic hardship of many citizens led to the introduction of the moratorium in the form of deferral during the time of the Roman emperors, whereby since Justinian I a distinction has been made between the sovereign moratorium and that granted by the creditors. Under him, the forced moratorium ( quinquennale spatium , from which the Germanized Quinquinal emerged ) developed for a period of up to 5 years . Venice offered the Crusaders a moratorium on their debts in 1202 if they were to conquer the city of Zara , which had fallen away from Venice , which also happened on October 24, 1202 with the siege of Zara (1202) . In 1430, Emperor Sigismund campaigned for a debt moratorium in the city of Mainz. The Prussian General Court Regulations of June 1793 contained in title 47 regulations on the moratorium ("indult"), which could be granted in the context of a court case. It was a letter of protection issued by the sovereign that protected the debtor, who had fallen into financial collapse, from access by his creditors for a maximum of 5 years.
Argentina stopped paying the debt service for its first government bond , issued in 1825, in 1829 for the next 28 years until 1857. From July 1826 Greece refrained from paying interest on its debts. After 1929, currency problems increasingly led to partial government moratoriums that only relate to national debt , public and private bonds, interest or repayment, or only affect foreign currency loans . Hungary declared a state moratorium in December 1931, from which it initially exempted the League of Nations loan. To prevent a global banking crisis , American President Herbert Hoover proposed a moratorium on all war and reparation payments on June 20, 1931, which came into effect on July 6, 1931, but could no longer prevent the German banking crisis . On June 9, 1933, the Hitler government imposed by Reichsbank President Hjalmar Schacht a transfer moratorium in view of the mass unemployment through the "Law on Payment Liabilities Towards Abroad", which for Schacht represented a "legal aid". By October 1975, the deficit budget position and the enormous debt burden of the city of New York City came to a head to such an extent that President Gerald Ford enforced a statutory moratorium to replace a federal guarantee, which, however, was enforced by the New York State Supreme Court for violating the treaty protection clause has been overridden.
The insolvency of Mexico in August 1982 triggered moratoria in Brazil (February 1987) and again in Argentina (April 1987). In December 2001 Argentina pronounced another moratorium under President Fernando de la Rúa - the largest default by a state to date . The financial crisis from 2007 onwards led to a moratorium by the banking supervisory authority BaFin on September 15, 2008 against the German subsidiary Lehman Brothers Bankhaus AG in the course of the bankruptcy of the major US bank Lehman Brothers . On October 9, 2008, BaFin imposed a payment and sales ban on the German branch of Kaupthing Bank . It was canceled on June 22, 2009 after the initiation of the repayment of all customer deposits, which was ordered directly by the Icelandic headquarters.
The German Banking Act (KWG) provides for a number of measures to be taken by BaFin in the event of a "risk", particularly if there is a risk of insolvency . If this threat threatens, BaFin can for example prohibit the credit institution concerned from making payments (for example, deposits or promised loans ) or from selling assets within the framework of a moratorium on raising funds (“ban on sale and payment ”) . The ban on sale relates to all items and rights , the ban on payments to cash and cashless payments . The counter lock serves to support the payment ban, which also affects ATMs and online banking . In addition, the can bank supervision to ensure that the bank no payments receives more, unless they are for the repayment of debt (towards her determined 1 4 para. Sentence 2 no. To 6 KWG). This in turn means that account credits (such as salary payments) may no longer be accepted by the bank concerned and will be transferred back to the client.
The purpose of a moratorium is here, without being able to check the pressure of the outflowing assets, whether the institute is still economically sound enough to be able to resume operations with the support of third parties, if necessary. The BaFin has not infrequently ordered moratoria on banks.
- grant a postponement for the fulfillment of their obligations and order that foreclosures against the credit institution are inadmissible for the duration of the postponement or
- give up being temporarily closed to traffic with your customers and neither making nor receiving payments and transfers in customer traffic.
This moratorium can be used in banking crises .
Export credit insurance
A moratorium represents a high risk for exporters , which they can usually only cover with export credit insurance. In the case of export credit insurance, the moratorium is one of the political risks, whereby the foreign importer is neither released from his obligation to pay by imposing the moratorium in his country nor is he in default of payment, but does not have to surrender the unpaid goods either. Retention of title would be in vain here. The prerequisite for insurance is a legislative measure that includes a payment ban. The willing and solvent importer is prevented from paying his import debts. Euler Hermes requires a deductible of 10% of the sum insured for political and 15% for economic risk. For example, in 2002 Hermes made compensation payments due to the Argentina moratorium in the amount of 56.5 million euros for insured claims.
- Karl Strupp / Hans-Jürgen Schlochauer, Dictionary of International Law , 1962, p. 551.
- Peter M. Bauer, The Insolvency Plan: Investigations into the legal nature based on historical development , 2009, p. 45.
- Joachim Leuschner, Deutschland im late Mittelalter , 1983, p. 68.
- German Encyclopedia or General Real Dictionary of All Arts , Volume 16, 1793, p. 367.
- Melchior Palyi / Paul Quittner, Handwörterbuch des Bankingwesens , 1933, p. 496.
- Alfred Manes, Staatsbankrotte , 1918, p. 44.
- Melchior Palyi / Paul Quittner, Handwortbuch des Bankingwesens , 1933, p. 373 ff.
- Rolf Richard Grauhan / Rudolf Hickel (eds.), Crisis of the Tax State? Contradictions, Perspectives, Evasion Strategies , 1978, p. 215.
- Bafin orders moratorium on Lehman Brothers Bankhaus AG
- BaFin orders a moratorium on Kaupthing Bank hf., Germany branch ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- BaFin lifts the moratorium on Kaupthing Bank hf., Germany branch ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- Stefan Smid, New Questions of German and International Insolvency Law , 2006, p. 47.
- BaFin on moratorium
- Vinzenz Bödeker, State Export Credit Insurance Systems , 1992, p. 39.
- Euler Hermes Kreditversicherungs-AG, Annual Report 2003 , p. 68.