debtor

Debtor is a natural or legal person who has a contractual or legal obligation to perform. The debtor is obliged to pay the creditor to provide a specific benefit from the existing obligation. The complementary term to debtor is the creditor.

General

In common parlance, the term debtor is usually reduced to debtors. However, law, case law and literature generally understand this to mean those who are obliged to provide a service. Achievement is any conscious and purposeful increase in the assets of others. This increase in assets for the creditor can arise through cash payments, but also through the transfer of property or rights (legal basis: purchase contract , donation ), through the granting of use of an item ( loan , rent , lease ), through the provision of services (service contract, Employment contract ) or by granting a loan . In the case of mutual contracts (such as purchase, rental or contract for work and services), both contractual partners are both creditors and debtors. When purchasing, the seller owes the buyer the handover and transfer of ownership of the item sold ( Section 433 (1) BGB), the buyer is liable for the counter-performance obligation, the purchase price (Section 433 (2) BGB). From this it can be seen that although the purchase price debts are generally viewed as a performance obligation of the debtor, the transfer of ownership and handover of the purchased item is also an obligation of the debtor seller.

Debt relationship

The BGB devotes the entire second book to the contractual obligation. In the central regulation of § 241 BGB it is determined that the obligee from an obligation is entitled to demand a performance from the debtor, whereby the performance can also consist in an omission. The contractual obligations include all contracts of daily life. The law regulates this only incompletely; The statutory provisions also apply accordingly to obligations not mentioned in the law ( e.g. leasing ).

In addition, there are also statutory obligations that result as a legal consequence of the behavior of those involved. The provisions on contractual obligations also apply to them, unless otherwise regulated. An example of a legal obligation is an unlawful act . Under certain conditions, the debtor is responsible for damage regardless of the existence of a contractual relationship if he is at fault ( § 823 BGB) or - regardless of fault - there is strict liability .

Obligations of the debtor

For an obligation to expire, it is not sufficient that the debtor has done everything necessary to provide the service. The debtor not only owes an act of performance, but also a performance success. Its binding force only expires when the service has been successful. To do this, the right service must have been fully provided in the right place at the agreed time. However, if the debtor has performed his performance without the performance being successful, he will at least not be in default of the debtor .

The debtor must perform the service at the right time, in the right place and in accordance with the contract, observing good faith . According to Section 271 (1) BGB, the time of performance (due date) is primarily based on the agreements in the contract, secondly on the (implied) circumstances and thirdly on the law. In the latter case, the obligee can demand performance immediately, the debtor must then effect it immediately. The place of performance is also determined according to the order of precedence mentioned; The legal place of performance is the debtor's place of residence or business ( Section 269 BGB). Since the obligee has to collect the performance from the debtor, the concept of debt collection has been developed for this. In contrast to the debt to collect there is the debt to bring , in between lies the so-called debt to send . According to Section 270 (1) BGB, monetary debts are debts to send, with the result that the debtor bears the risk and costs of paying the money. For commercial transactions , so-called commercial customs with deviating regulations exist in particular with regard to the due date, place of performance and risk bearing .

Joint and several debtors

If not only one contracting party is obliged to perform under a contract, but at least two parties, we speak of joint and several debtors . To this end, Section 421 of the German Civil Code (BGB) clarifies that although each of the debtors is obliged to effect the entire performance, the obligee may only request it once. The obligee has the right to demand performance from each of the debtors in whole or in part at his discretion. All joint and several debtors remain obliged until the full service has been fulfilled. There is a close, planned legal community of convenience between the joint and several debtors, which is responsible for the repayment of the single debt. The jointly liable are also the main debtors and are responsible for their own liability. However, jointly liable parties are not borrowers with equal rights and are therefore not on a par with them.

Lapse of the obligation

According to § 362 BGB, the obligation expires when the performance owed to the obligee is effected. The performance owed can be very different depending on the type of debt relationship (cash payment, repayment , provision of ownership, etc.). In the case of this fulfillment , it is legally irrelevant whether the debtor or someone else fulfills the service ( Section 267 (1) sentence 1 BGB). The debtor's wife, brother, credit institution or debtor can also pay the purchase price; however, the obligee can refuse performance if the debtor objects (Section 267 (1) sentence 2 BGB). As a rule, the debtor will fulfill himself, who will then discharge the debt. Debt discharge means that he is finally released from his contractual obligations as a debtor through the contractual performance. However, if the debtor has to perform “in person”, fulfillment by third parties is excluded.

Another reason for the extinction of the debt relationship is debt relief ( Section 397 (1) BGB) or resignation , in which the services already provided are to be returned to each other ( Section 346 sentence 1 BGB).

Delimitations

The term debtor in accounting is limited to a debtor from deliveries and services whose contractual partner is called the creditor . Accounts receivable insurance protect the supplier against the risk of default on trade accounts receivable. In the credit system , the debtor is mostly referred to as the borrower . The relationship is the opposite in the deposit business of credit institutions , because here the customer is the creditor and the bank is the debtor of the investment. In the special legal sense, the debtor is also a party to a foreclosure against which the enforcement is taking place (cf. § 808 Code of Civil Procedure ). In insolvency law , the debtor is the bearer of the assets over which the insolvency proceedings are opened; the debtor has legal obligations to provide information and to cooperate in the insolvency proceedings (cf. § 97 of the Insolvency Code ).

Switzerland

In Swiss usage, the term “debtor” in a debt enforcement only has the meaning of “ debtor ”.

Web links

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

Individual evidence

↑ BGH judgment of October 31, 1963, BGHZ 40, 272, 278
↑ BGHZ 43, 227
↑ BGH NJW 2001, 815
↑ Hunziker Marc / Pellascio Michel, Debt Enforcement and Bankruptcy Law , Repetitorium, Zurich 2008, p. 7. ISBN 978-3-280-07072-7

[1] BGH judgment of October 31, 1963, BGHZ 40, 272, 278

[2] BGHZ 43, 227

[3] BGH NJW 2001, 815

[4] Hunziker Marc / Pellascio Michel, Debt Enforcement and Bankruptcy Law , Repetitorium, Zurich 2008, p. 7. ISBN 978-3-280-07072-7