Default of debtor (Austria)
The debtor of a due and enforceable claim is in default of debt if he has not performed his performance at the time of the circumstance triggering the default (usually a reminder or time lapse ) and is responsible for this delay. In the case of a monetary claim, one speaks of default in payment (especially outside of legal science ) .
In the Austrian law of obligations , debtor default is regulated in the ABGB ( § 918 ), special standards can be found in the UGB . A bank transfer is timely and avoids default if the account-based transfer order is received by the debtor's bank within the payment period; For payments in business transactions, however, according to the default payment guideline, a payment processed by bank transfer is only timely if the amount is credited to the creditor's account within the payment period.
requirements
In Austrian law, default is understood to mean the failure to provide the service or the non-contractual offer. In the event of default, the service will not be provided at the appropriate time, at the appropriate place or in the manner stipulated in the contract. The ABGB differentiates between objective and subjective default, depending on whether the debtor is at fault for the default (subjective default) or not (objective default).
Legal consequences
Objective delay
Even in the event of an objective delay , the obligee has a right to choose: he can adhere to the contract and insist on performance or set a reasonable grace period and withdraw from the contract after it has expired . In this way, the obligee should give the debtor an opportunity to fulfill. The unity of the declaration of withdrawal and the setting of a grace period is important, see Section 918 (1) ABGB. Example: "I consider myself no longer bound by the contract if you do not provide your service by [date] / within [period]." This grace period must be reasonable.
Subjective delay
If the default was caused by the debtor, we speak of subjective default . The obligee has the same right of choice as in the case of objective default, but the debtor can also meet obligations to pay damages: In the event of a lawful withdrawal from the contract, the obligee can demand compensation for non-performance of the contract, and if the contract is adhered to, the so-called delay damage. He can demand reimbursement for all costs and damage that he incurred as a result of the late delivery or service. Of course, this claim for damages presupposes - like any claim for damages in the area of fault liability according to the ABGB - a specific damage. This is precisely what is often lacking in the private sector, as the "damage" that occurs, for example, through anger about late performance, is not a substitutable damage in the legal sense.
interest
In the case of monetary debts, however, the statutory default interest of 4% per year or the contractually agreed default interest can be claimed in any case - regardless of a specific damage.
Deviating from this, the default interest between entrepreneurs from entrepreneurial transactions is 9.2 percentage points above the base rate if the debtor is responsible for the default in payment ( § 456 UGB ).
If a due date has been set within a fixed transaction and the obligee has missed it, it must also be noted that the obligations for performance on the part of the debtor are no longer valid ( Section 919 ABGB), unless the obligee requests fulfillment within this period.
Web links
Individual evidence
- ↑ When is a money transfer considered timely? ( Memento from April 23, 2012 in the Internet Archive ) at www.profbrugger.at
- ↑ Glossary of Terms - Default Interest. In: oesterreich.gv.at. Federal Ministry for Digitization and Business Location, April 29, 2019, accessed on January 2, 2020 .
