As a residue (or arrears , late payments ) is called colloquially and in accounting the default of the debtor , where the debtor a due and enforceable claim his payment undertakes not or not in time and this delay represented has.
The default in payment is one of the four performance defects in the purchase contract ; there is also default in acceptance and (on the part of the seller ) default in delivery and defective delivery . A default in payment is generally present in the purchase contract if the buyer does not pay the purchase price or does not pay it on time ( (2 ) BGB ). Arrears occur in contractual payment dates or credit terms to the calendar date in accordance with BGB automatically, without a reminder needs ( , para. 2 BGB). In other, non-calendar-specific payment delays has creditors after the onset of maturity (1 § 286 para. BGB) a reminder to send that sets the debtor in default. According to Section 286, Paragraph 4 of the German Civil Code, the debtor is responsible for his default, which is assumed in the case of monetary debts , because the principle “money has to be had” applies.
Residues often occur in continuous obligations ( lease , credit agreement , leasing contract , insurance contract , electricity supply on), which consist of time over a longer period of time and cause repetitive regular payment obligations of the debtor. Payment dates are always determined according to the calendar by contract ( credit , leasing , insurance , electricity supply contract) or law (rental contract: the monthly rent is to be paid according to BGB at the the month, at the latest on the third working day of the month). In the case of continuing obligations, payment arrears can consist of rent / ancillary costs , loan interest / repayments , leasing installments, insurance premiums or electricity costs .
Particularly in the case of continuing obligations, arrears can quickly grow into larger debts if the debtor fails to make several payments. In order to prevent this, the law provides for these continuing obligations to be terminated by termination by the obligee. In the case of rental contracts, there is therefore an extraordinary termination without notice for an important reason in (2) No. 3 BGB , as soon as the tenant falls behind with two months' rent. In the case of loan agreements there is an extraordinary right of termination in accordance with (1) BGB in the event of a significant deterioration in financial circumstances or due to deterioration in the value of loan collateral ; in the case of consumer loan agreements, an extraordinary right of termination is established in BGB if the borrower is in default of at least two successive installments or falls into arrears with at least 10% for a loan term of up to three years and at least 5% of the nominal loan amount over three years. In VVG , a written payment period of two weeks is stipulated for insurances, stating the arrears; in accordance with § 38 Paragraph 3 VVG, the insurance company may give notice of termination without notice after the deadline has expired . According to (1) of the Electricity Supply Ordinance ( StromGVV) , the basic supplier has the right to impose a power cut under certain conditions when it comes to the basic supply of household customers with electricity . According to StromGVV, he can terminate the contractual relationship without notice. If the tax debtor is in arrears with an agreed installment payment in whole or in part for more than two weeks when enforcement is postponed, then the payment agreement and postponement of enforcement are invalid; this legal consequence occurs automatically according to § 802b para. 3 sentence 3 ZPO.
Arrears can be an indicator of a debtor's inability or unwillingness to pay . Covenants in contracts, especially loan agreements, are intended to prevent creditworthiness problems. You define key business figures ( debt ratios such as the interest rate or debt service ratio ) which, if exceeded, automatically trigger a loan termination. Art. 178 para. 1b Kapitaladäquanzverordnung (abbreviation CRR) applies to banks a debtor as failed if a substantial part of its debt is overdue more than 90 days. His rating automatically falls to the worst rating code "payment default". Exceptions of 180 days apply to residential and commercial properties and public bodies . Residues (banks, creditors of certain leasing companies, telecommunications companies , trade , mail order , rental ) of the Schufa reported that accordingly issued to its members on request information.
- Wolfgang Boiger, Material Law , 2014, p. 66
- Melanie Besken, Die Reform der Zwangsvollstreckungsrechts , 2013, p. 31