check
The check ( Switzerland. Mostly checks or check ) is a means of payment , where the cash paid exhibitors a credit institution instructs , a payee at the expense of the current account of the exhibitor a certain amount of money to pay.
General
There are at least three parties involved in a check, namely the issuer ( debtor ), the bank as the drawee and the payee (also beneficiary, remittent) as the creditor .
The check is a security , specifically a born order paper of § 363 HGB . It is therefore transferred by endorsement . The payment instruction can on cash ( cashier's check ) or account credit ( Verrechnungsscheck loud). The check is a document that leads to a document process in the event of a dispute . In practice, credit institutions usually use individual bearer checks , which turn the check into a de facto bearer paper that is transferable without endorsement. A check is form-bound (check severity ), but not form -bound .
The main difference to the change is that the issuer of a check can only specify a credit institution with which the issuer maintains a bank balance or a line of credit as the name of the person who is to pay (drawn bank) . A check is therefore - unlike a bill of exchange - not used for credit transactions , but exclusively for payment transactions . In addition, the payment of a check can be refused by the bank with which it is drawn, for example to avoid an account overdraft . In order to prevent this uncertainty, various forms of guaranteed check have been introduced in practice. The best known example of a guaranteed check was the Eurocheque , which was used until January 1, 2002 .
Checks and bills of exchange have lost their former importance as substitutes for money in many countries, and checks are rarely used in Germany either.
etymology
The word “check” was borrowed from English into German in the middle of the 19th century . Initially there was competition between the spelling check , which is common in American English, and the form check , which has been preferred in British English since the 18th century , and both are still common today in Swiss Standard German . In Germany, however, the Germanized form of check prevailed from 1908 , which was previously proposed by Konrad Duden and recommended to the legislature by the General German Language Association in 1899 .
The origin of the English word has not been conclusively clarified. The Etymological Dictionary of the German Language favors the hypothesis advocated by Enno Littmann and Karl Lokotsch , among others , that the word in Arabic صك / Ṣakk (pluralصكوك / Ṣukūk ), which is used to denote interest-free bonds in Islamic banking , and specifically also the payment instructions issued in writing. Other authors suspect the origin of the word in the game of chess (old French echecs , ultimately in Persian šāh Shah /شاه/ ' König '): check originally denotes the chess command in English , i.e. the announcement when the king is threatened (German "schach!"), And when used as a verb, it means "to keep in check," in the figurative sense also as much as " inhibit, stop, put a stop to ”and finally“ control, check the correctness of something ”- the check could therefore be named after the coverage check to be carried out when cashing. In 1706 the word check is first attested in the French spelling of a control section of a payment order; it has been used as a name for the payment order to be checked since 1717, first in the internal parlance of the Bank of England . There may also be a connection with the Exchequer , the English treasury, the name of which probably derives from the checkerboard pattern of its calculation tables .
history
The check is older than the coins . During the latter in Greece / Asia Minor in the 8./7. Century BC The forerunners of the check were already in use at the time of King Hammurabi (1728–1686 BC). This was a kind of warehouse receipt that certified the right to a certain amount of grain being delivered to the check holder. From the surviving business archives of the bank of the "grandchildren of Egibi " (7th / 6th century BC) it can be seen that it allowed its bank customers to withdraw all or part of their deposits "by check". English kings handed their creditors in the 12th century sack instructions ( English bills of scaccario ), which were addressed to the treasury ( English exchequer ). After 1177, the clergyman Richard Fitz Nigel , Lord High Treasurer of the Exchequer under the reign of Henry II , published the "Dialogue from the Exchequer" ( Latin Dialogus de Scaccario ). It is about the secular power of the king, by virtue of which he can demand income from his subjects even without legal norms. The words “Check” and “Scheck” developed from “Exchequer”. In medieval Italy in 1374 a transferable money order ( Italian polizza ) was able to dispose of a credit with a money custodian .
In the Netherlands , payment orders ( Dutch kassiersbriefje ) developed after 1621 , in which the merchant confirmed in advance that he had received a certain sum of money from the cashier. The cashier was a professional cashier who carried out the money and payment business ( Dutch kassiers ). The first check in England appeared in 1670 as an English drawn note, based on the Netherlands and made it possible to dispose of deposits . Already in 1775 the bankers taught here a clearinghouse ( English clearing house ) one that processed circulating checks. His first legal basis he received until 1882 by the Bills of Exchange Act , in which the check - now English Check (as a subspecies of the bill - called the English bill of exchange was defined). There was a first check law in France as early as June 1865 , after the use of receipt checks ( French chèque mandat or chèque reçu ) had led to many legal disputes. This was due to the payment , which the wording of the check indicates as having been made when it was issued and was therefore often called "liar form" ( French forme menteuse ).
Once in Germany in the March 1619 Hamburg bank was, was this with on Mark Banco denominated Banco slips instructions that allow bank customers could have their deposits. Checks (at that time still "checks") in today's sense did not appear until 1850 through the big banks , but they met with initial skepticism. The Reichsbank, founded in June 1876, then made the check more important, because it usually only allowed cash payments to be made in the form of “white checks”, which were considered a normal means of payment. The "Berlin Check Convention" initiated by the Reichsbank in February 1883 aimed at promoting check transactions. The first monograph on the check appeared in 1890, which attributed the check to greater popularity in the United States than on the continent. In April 1908 the first German check law came into force. The Geneva Agreement on the Uniform Check Act of March 19, 1931 was implemented in Germany with the new Check Act of August 14, 1933.
Legal issues
The check is regulated in the German Check Act (SchG) of August 14, 1933, an article law that is based on the check law agreement concluded in Geneva on March 19, 1931.
Check Act
In Art. 1 SchG, the six legal components of the check are finally listed which, according to Art. 2 SchG, must be present in their entirety so that it is legally valid as a check. Legal components are the designation as a check in the text of the document, the unconditional instruction to pay a certain sum of money, the name of the drawee, the place of payment, the date and place of issue and the signature of the issuer. A check without a date or without a place of issue is ineffective . However, the date of issue does not necessarily have to correspond to reality; a backdated or postdated check is effective.
According to Art. 3 SchG, only a banker may be drawn - ie a credit institute ( Art. 54 SchG) with which the issuer has a credit balance (or a free credit line). The obligation to redeem does not result from the check law, but from the check contract (agency agreement) between the bank and the issuer of the check. He must therefore have a current account with the bank ( Art. 3 SchG). The note “or bearer” makes the check a de facto bearer paper in accordance with Art. 5 SchG. According to Art. 12 SchG , the issuer is liable for the payment (redemption) of the check. Checks without the note “to order” can also be transferred by endorsement, the recta clause “not to order” effectively turns the check into registered paper , which can only be transferred by assignment ( Art. 14 SchG); a blank endorsement is permitted ( Art. 15 Para. 4 SchG, Art. 16 Para. 2 SchG). Endorsements transfer all rights from the check ( Art. 17 SchG), and endorsers are also liable for the payment from the check ( Art. 18 SchG). Pursuant to Art. 28 SchG, the check is payable on sight, ie presented to the drawee. The submission deadlines ( period between the day of issue and the day of submission to the drawee) are regulated in Art. 29 SchG. Thereafter, a domestic check must be presented for payment within eight days, a check in Europe within twenty days, and an overseas check within 70 days of the date of issue. The time limit stipulates that the day on which they start to run is not counted ( Art. 56 SchG). It should be noted here that it is irrelevant whether a check crosses a national border after it has been issued. If a check that is made out in London and also payable at a London bank is then sent to Germany and presented by the recipient residing in Germany to his bank in Germany, the deadline for presentation is 8 days. Something else would only happen if this London bank check had been made out in Germany, for example. If the submission deadline has expired, the check can still be cashed; however, the drawn bank may refuse to redeem it. Statutory and judicial days of respect are not permitted. In accordance with Art. 34 SchG , the drawn credit institution can request the holder to hand over the acknowledged check upon payment . According to Art. 35 SchG , the institute must check the correctness of the series of endorsements. Crossed checks issued abroad are treated as crossed checks in Germany ( Art. 38a SchG). The note “only for settlement” excludes a cash payment , because this crossed check may only be redeemed by way of the account credit according to Art. 39 SchG. The check protest is triggered in accordance with Art. 40 SchG if the check presented in good time has not been cashed and the refusal of payment has been established. Here, each check obligor liable to the owner as a joint debtor ( Art. 44 SchG). In the event of a check that has not been cashed due to insufficient funds, the redeemer has the option, according to Section 605 of the German Code of Civil Procedure, to enforce his / her claim within the framework of a document process if the requirements of Article 40 of the Check Act are met. Mislaid or destroyed checks can by way of contingent method for powerless are explained ( Art. 59 SchG).
The confirmation of checks, i.e. the guarantee of their redemption by the drawee, is reserved only for the Bundesbank in accordance with Section 23 (1) BBankG ( confirmed Bundesbank check ). Otherwise there is a general ban on acceptance .
Legal relationships
The instruction (“pay against this check”) gives rise to three legal relationships: The cover relationship exists between the instructing and the instructed ; the instructed is made to pay the check taker at the expense of the instructing. The value relationship exists between the check issuer and the check recipient . In the redemption relationship between the check taker and the authorized person, the recipient of the instructions is authorized to collect the service in his own name. If the transfer clause is deleted, the check will become invalid. The visa (immediately upon presentation of the check) does not need to be written in Germany because the check is by law a face paper.
Monetary debts are to be met by the debtor in cash . A check therefore does not have to be accepted to settle a monetary debt , as it is only a substitute for money . If it is accepted, this is usually only on account of performance and not in lieu of performance: the check is not intended to replace the cash payment, but rather to enable the creditor to receive payment. In the absence of further agreements, however, it is sufficient for timely payment to provide the service within the specified period. The focus here is not on the success of the service (receipt of the money), but on the action taken: If the debtor sends the check to the payee z. B. on the last day of the discount period by post, the discount period is considered to have been observed.
If the check recipient does not receive payment from the bank drawn as a result of the check, he is free to demand cash payment from his business partner. The check offers the check taker the opportunity to obtain an enforcement title relatively quickly and easily in the document process .
In order for the check procedure to work, the central banking associations have signed the “Agreement on the Collection of Checks” with the Deutsche Bundesbank .
Others
Checks for credit on a current account will be credited with reservations. Check fraud ( fraud according to § 263 StGB, without this being specifically mentioned in the law) occurs when a check issuer hands over a check although he is aware of insufficient funds (“bad check”). The check kiting is a check fraud.
Check collection
The check collection corresponds to the check credit after receipt (n. E.). For the beneficiary of the check, this means that he will only receive his credit as soon as the bank has actually received the money. Crediting upon receipt is primarily chosen if there are doubts as to whether the check will be cashed by the bank drawn. In contrast, the credit “Receipt reserved” (E. v.) Is of greater practical importance in monetary transactions. The equivalent value of the check is immediately credited to the account of the beneficiary (check presenter), the value date (value date) occurs on the expected redemption date.
No submission for collection takes place at
- expired check presentation period (Germany: 8 days. Europe 20 days. Overseas: 70 days. USA: expiry date on check)
- obsolete checks
- missing components
- little-known foreign banks
- previously unknown customers of the beneficiary.
Check collection proceeds as follows:
- Issuance of a check by the debtor and dispatch to the beneficiary
- Submission of the check by the beneficiary to his house bank for credit
- with credit E. v. immediate credit is made to the beneficiary's account, value date i. d. R. max. three days
- Check collection by the beneficiary's bank at the bank drawn
- Debiting the debtor's account
- if the credit is not issued, the beneficiary will be credited.
Paperless check collection
Checks are collected in Germany for amounts under 6,000 euros using the so-called paperless check collection (BSE procedure). In this case, the original check is not presented to the bank in question; it is merely transmitted as a data record. Strictly speaking, this procedure violates the Check Act, which requires physical presentation of the document.
The check presenter also has the disadvantage that if the check is not cashed , he can not carry out a check process , since it is naturally not possible for the bank drawn to affix a corresponding presentation note with a signature (not a protest note) to the check.
Historical background
In July 1985, the credit institutions began not to forward checks for an amount of up to 1,000 German marks to the drawee institution (drawee), but to process these checks in paperless form. The basis for this procedure was the agreement on paperless check collection , which was introduced in the interests of customers and banks in particular.
The BSE limit has been increased further over time: from 1,999.99 DM to 4,999.99 DM (from April 7, 1993) up to the current EUR 5,999.99 (since November 2, 1994).
During the introductory period, around 700 million checks per year were submitted for collection, which resulted in considerable personnel and material costs that ultimately had to be financed (or cross-subsidized through other income ) by the customer of a bank through account management fees . However, the considerable workload can only be kept within limits by using modern data processing systems. In addition, the redemption times can be shortened by the BSE procedure. This also means that when a check is returned, the information reaches the check recipient more quickly. He can therefore react more quickly to the changed liquidity situation of the check issuer.
Legal background
The check law from 1933 is also not tailored to the use of modern technology. The requirement under the Check Act to physically present the paper to the bank in question can no longer be met if the relevant check data is merely transmitted (the data record consists of the data from the code line).
If a paper is not redeemed, a proper presentation note (no protest!) Within the meaning of Article 40 No. 2 ScheckG cannot be attached. In the BSE procedure, the note "not paid by the bank referred to on ..." (no signature of the first collection point required) on the check or the copy of the check to be put on the check or the check copy by the first collection point is not sufficient as a proper presentation note. The consequence of this is that a check presenter forfeits his right to recourse under check law and can no longer conduct a check process against the check giver. However, this generally only results in disadvantages for him if he has to assert his claims in normal court proceedings and the check issuer becomes insolvent until the judgment is issued.
What does the check taker have to consider when doing a BSE return check?
The following points should be pointed out: A check process can no longer be carried out with the check (copy of the check), as the required presentation note cannot be made by the bank concerned in the paperless procedure. The check recipient must enforce his rights from the contract on which the check is issued in normal court proceedings (no shortened admission periods to the court). To prove that the check has not been cashed, it is sufficient to present the copy of the check with a note that the check has not been cashed.
The elimination of the possibility of conducting a check process can cause damage to the check recipient because he may not be able to enforce his claim until later than would have been possible with a check process, and enforcement fails in whole or in part.
Furthermore, as a result of the lack of a check protest or a presentation note, the check taker cannot demand payment of 1/3% of the check amount from the issuer, which would otherwise have been due to him (Art. 45 No. 4 ScheckG).
Finally, no claim can be made against a check guarantor or an endorser without a check protest or a presentation note, whereby it should be noted that an endorser is also liable for a bearer check (Art. 20 ScheckG).
Failure to protest or present a check always means damage for the check holder and considerably weakens his legal options.
To settle this damage, the check recipient should contact the bank (1st collection agency).
The banks or savings banks will assume liability to the check recipient for damage caused by the procedure in such exceptional cases.
Furthermore, the check recipient is supported by the provision of Article 58 ScheckG. According to this standard, the check issuer who is not exposed to possible recourse (recourse) as a result of failure to present it on time remains obliged to the check holder insofar as he would enrich himself with his damage.
Image-based check collection
For security reasons, checks for amounts of EUR 6,000 or more will not be collected without paper. The new ISE procedure ( image-supported check collection ) has been used for this purpose since September 2007 . A scan of the front and back of the check is created and sent via the Bundesbank to the bank drawn. The original checks must be kept for three years by the bank that submitted them for collection and physically presented to the drawee bank upon request (if, for example, the check issuer relies on a forgery of his signature or similar).
With this procedure, too, no protest can be made on the check itself. In the event of non-payment, however, a corresponding confirmation is issued by the Bundesbank, which also enables the submitter to conduct a check process.
The previous GSE (large amount check collection) process has been replaced by the ISE process. The original checks were always presented physically. Only this procedure still strictly complied with the regulations of the Check Act, but involved considerable processing and costs.
meaning
The importance of the check is constantly decreasing in Germany. While 393.3 million checks for 986.5 billion euros were still issued in domestic payments in 2000, in 2006 there were only 108.9 million checks for 602.3 billion euros; in 2015, check transactions fell to 21 million checks for 153.1 Billion euro. This enormous decline was due to the discontinuation of the Eurocheque guarantee in December 2001, which prevented consumers from continuing to use this means of payment.
The share of checks in all payment instruments is negligible in Germany, so that they no longer play a role in payment transactions today:
| Payment instrument | Transactions in 2017 in million pieces |
Proportion of (%) |
|---|---|---|
| Transfers | 6,287.5 | 29.7 |
| Direct debits | 10,317.7 | 48.8 |
| E-money function | 35.1 | 0.2 |
| Debit cards / electronic cash | 4,494.1 | 21.2 |
| checks | 12.8 | 0.1 |
| total | 21,147.2 | 100 |
International
Most European states including Russia , the states of South America and Japan , but not the countries of the then British Commonwealth of Nations and the USA , have acceded to the Geneva Convention on the Law of Checks, so that check law is largely harmonized internationally.
The check is also no longer relevant in most EU member states . It is no longer statistically recorded in Bulgaria , Denmark , Estonia , Finland , Croatia , Latvia , Lithuania , Luxembourg , the Netherlands , Poland , Sweden , Slovenia , Slovakia , the Czech Republic and Hungary . In particular in Malta (17.8% share of all payment transactions), Cyprus (15.3%) and France (10.2%), the check is still a common means of payment. The ECB , according to around 84% was in 2016 all payments made by check payments in the euro area in France. The expenditure for the check records is great, because they are for the clearing digitized ( English truncated's checks ) in order litigate to. Anglo-Saxon countries such as Ireland (3.1%) or the United Kingdom (1.9%) still have recognizable check transactions. In Swiss enforcement law, the presence of a check (or bill of exchange) is a prerequisite for initiating a so-called bill of exchange (Art. 177 SchKG ).
In the overseas Anglo-Saxon area ( USA , Canada ) the check is still very important today, payment obligations are usually settled here by sending a check. In the USA in 2015 there were a total of 17.9 billion check payments with a volume of 28.97 trillion US $, the average check amount was 1,618 US $. In terms of volume, this means a share of 36.5% of all transactions. Checks are most commonly used to pay incidental expenses (25.7% of all check transactions), followed by retail purchases (19%) and corporate or government remuneration to consumers (17.8%); Check transactions from consumer to consumer are reported at around 11%. Among the "compensation from companies," the paycheck ( English paycheck included), the employee (because of their payroll English pay stub get).
Transferable as species Instruments ( English negotiable instruments ), there are in the US legally in accordance with Sec. 3-104 Uniform Commercial Code (UCC) issued to a bank and from the payer ( English payer ) prepay check ( English cashier's check ), one of the related bank confirmed Verrechnungsscheck ( English certified check ) or issued by a bank check, cash must be paid in cash immediately for coverage ( English teller's check ). When "cashier's check" also needs the payee ( English payee ) a bank account maintained by the issuing bank, the "teller's check" payment against it is only to other banks, which will forward them to the payee. With the “certified check”, the issuing bank guarantees payment and blocks the check amount on the account of the issuer. The money transfer ( English Money order ) according Sec. 3-104 (f) UCC also received a check.
There is the possibility of marking it as a crossed check with just two parallel lines; one then speaks of a "crossed check".
The banks in Great Britain decided in 2009 to completely abolish the option of paying by check after a transition period until 2018. After protests this is not carried out, but the guarantee of check payments by means of a guarantee card was abolished in 2011.
Others
The blank check is a check in which the issuer leaves the amount of money open. Since a legal component is missing (Art. 2 SchG), the blank check is ineffective until it has been completed. The word colloquially also means blank power of attorney , charter or general permit . Colloquially, the "blank check" is also the paraphrase for an unlimited or uncontrollable risk, financial risk or life risk that someone takes. A “bad check” ( English bogus check ) is an unpaid check, colloquially an unreliable person. The term "Schüttelscheck" is a colloquial term for a bad check. If an attempt is made to cash this check, the bank clerk shakes his head.
Certain vouchers with a payment function are also known as checks, e.g. B. Book checks or restaurant checks . These vouchers are only subject to civil law provisions, as they are not checks within the meaning of the Checks Act. A household check is an official form.
See also
Web links
- Travel fund - tips for the right mix Online special from the Association of German Banks
- Agreement on the Uniform Check Act of March 19, 1931 (German translation) (PDF file; 534 kB)
- Guidelines for uniform payment transaction forms Die Deutsche Kreditwirtschaft
Individual evidence
- ↑ Swiss Association for the German Language (publisher), Swiss High German: Dictionary of Standard Language in German-speaking Switzerland , Bibliographisches Institut, Mannheim 2012, p. 24 and p. 85.
- ↑ Mark Spengler, The Development of the Check Act of March 11, 1908 , Peter Lang, Frankfurt am Main (et al.) 2008, p. 19
- ^ Enno Littmann: Oriental words in German. 2, increased and improved edition, Tübingen 1924, p. 116.
- ^ Karl Lokotsch: Etymological dictionary of the European (Germanic, Romanic and Slavic) words of oriental origin . Carl Winter, Heidelberg 1975, p. 140.
- ^ Entry check in: Friedrich Kluge: Etymological dictionary of the German language . Edited by Elmar Seebold. 25th, updated and expanded edition (e-book), Berlin u. a. 2012.
- ↑ Andreas Unger: From Algebra to Sugar: Arabic Words in German . Reclam, Stuttgart 2013, sv Scheck .
- ↑ Georg Cohn : The word "check" . In: Ceremony for the 60th birthday of the secret Justice Council Professor Dr. Riesser . Guttentag, Berlin 1913, pp. 367–377.
- ↑ Leonidas Pitamic : Influence of the game of chess on legal terminology: Etymology of the words “check” and “Exchequer.” In: Austrian magazine for public law and international law , Ser. NF, Vol. 6, 1953/55, pp. 501-516.
- ↑ Mark Spengler, The Development of the Check Act of March 11, 1908 , 2008, p. 22 f.
- ↑ Ernst Klein, Deutsche Bankengeschichte , Volume 1, 1982, p. 14 f.
- ^ Helmut Lipfert , National and international payment transactions , 1970, p. 56
- ↑ Felix Liebermann, Introduction to Dialogus de Scaccario , 1875, p. 78
- ↑ Georg Obst / Otto Hintner, Geld-, Bank- und Börsenwesen , 1955, p. 85
-
↑ Jörgen Bastian, Money
rulesruin the world , 2009, p. 29 f. -
↑ Jörgen Bastian, Money
ruledruin the world , 2009, p. 30 - ^ David L. Sills, International Encyclopedia of the Social Sciences , 1968, p. 514
- ↑ Ludwig Kuhlenbeck, Der Check: His economic and legal nature , 1890, p. 45 f.
- ↑ BGH, judgment of May 13, 1997, Az .: XI ZR 84/96 = WM 1997, 1250
- ↑ OLG Hamm, judgment of October 14, 1997, Az .: 7 U 104/94 = WM 1995, 1102
- ^ Deutsche Bundesbank , Statistics on Payment Transactions in Germany 2000-2004 , February 2006, p. 6 f.
- ^ Deutsche Bundesbank, Statistics on Payment Transactions in Germany 2002-2006 , January 2008, p. 6 f.
- ↑ Deutsche Bundesbank, archived copy ( memento of the original dated December 8, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Deutsche Bundesbank, Payment and Securities Settlement Statistics in Germany 2013 to 2017 , as of September 2018, p. 9
- ↑ ECB Press Release September 15, 2017, Payment Statistics for 2016 , p. 6
- ↑ ECB Press Release September 15, 2017, Payment Statistics for 2016 , p. 6
- ↑ Marc Hunziker / Michel Pellascio, Repetitorium Debt Enforcement and Bankruptcy Law , 2008, p. 198
- ↑ Board of Governors of the Federal Reserve System, January 25, 2018, The Federal Reserve Payments Study: 2017 Annual Supplement
- ↑ Handelsblatt of October 14, 2006, Check Payments in the USA: A Great Love Affair
- ↑ Kai Blum, Everyday Life in America: Living and Working in the USA , 2014, p. 143 f.
- ↑ Patrick Collinson: Checks to be bounced into history. In: The Guardian . December 15, 2009, accessed December 11, 2015 .
- ↑ Mark King: Check guarantee card abolition to stay. In: The Guardian. December 20, 2011, accessed November 12, 2015 .
- ↑ Hans Schulz / Otto Basler, German Foreign Dictionary , Volume 3, 1997, p. 351
