Debtor default (Germany)

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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 German law , debtor default is regulated in the BGB ; § 280 Paragraphs 1 and 2, § 286 ff. BGB are relevant .


A common definition in jurisprudence for debtor default is: "Debtor default is the culpable non-performance despite the possibility , due date and reminder ". It does not correspond exactly to the legal situation, but is helpful for a first, rough basic understanding of the term. The debtor's default is to be defined more precisely, albeit less plausibly, than the "unlawful delay in a possible performance act at the time of the due date and enforceability of the claim for a reason for which the debtor is responsible". The default of the debtor triggers various legal consequences, especially the debtor's obligation to pay compensation . The Business Administration speaks at excess of an agreed payment period to the value date of an invoice late payment.


Meets the debtor an enforceable (without objections ) overdue - in doubt now - ( § 271 BGB) debt obligation , although he had the opportunity to power, not business and he gets from creditors warned, he comes through the reminder in default (§ 286 para. 1 sentence 1 BGB). The reminder must contain a request for performance that is both definite and unambiguous . The filing of a lawsuit for performance and the delivery of a dunning notice in the dunning procedure are equivalent to the reminder (Section 286 (1) sentence 2 BGB). A reminder is unnecessary in exceptional cases (Section 286 (2) BGB) and the delay occurs under certain conditions even without a reminder (Section 286 (3) BGB). The debtor must be responsible for the failure to perform ( Section 276 (1), Section 278 of the German Civil Code). This is assumed to be at the expense of the debtor (Section 286 (4) BGB).

Legal consequences

The obligee can demand compensation for delayed damages ( § 280 Abs. 1, 2 BGB), in the case of payment claims also the 40 euro default lump sum§ 288 Abs. 4 BGB) and default interest§ 288  ff. BGB).

During the delay, the obligee's right to performance remains. The debtor is liable for negligence and coincidence ( § 287 BGB).

Default damage

The claim for damages for delay is based on the costs of legal prosecution (§§ 280 Paragraph 1, 2 in conjunction with 286 BGB). These are often (but not limited to) expenses for written reminders , expenses for return debits and expenses for address determination .

40 euro default fee

A default fee of 40 euros can be claimed from non-consumers (Section 288 (5) sentence 1, 2 BGB).

The lump sum must be offset against the costs of pre-judicial prosecution (e.g. pre-judicial lawyer or debt collection agency costs) (Section 288 (5) sentence 3 BGB), but not against court costs. Since the lump sum arises in full from the default regardless of the actual amount of damage (e.g. dunning costs), there is a financial incentive to carry out the pre-judicial reminder yourself without a lawyer or debt collection agency.

It is controversial whether an employee is entitled to the default fee if the employer defaults. Eight chambers of different state labor courts decided in favor, a senate of the federal labor court and a chamber of a state labor court against. The Federal Labor Court has not yet issued a supreme court decision by the Grand Senate , but there are pending proceedings from three other Senates.

As long as the opposing party is a non-consumer (Section 288, Paragraph 6, Clause 4 of the German Civil Code), the obligee's claim to the lump sum for arrears and the reimbursement of legal prosecution costs cannot be excluded or limited in advance if this would be grossly unfair for the obligee (Section 288 para. 6 sentence 2 var. 2 BGB). The rule here is that in case of doubt, an exclusion is always to be viewed as grossly unfair (Section 288 (6) sentence 3 BGB).

late payment interest

Money claims are subject to interest during the delay (Section 288 (1) sentence 1 BGB). The assertion of damage that goes beyond the default interest, such as interest on loans or lost profit, is possible (Section 288 (4) BGB). Excluded from this are real estate consumer loan contracts whose interest rate is fixed ( Section 497 (4) sentence 1 BGB).

No default interest is to be paid on the interest itself ( § 289 sentence 1 BGB), unless the creditor effectively sets the debtor in default on account of arrears interest amounts (§§ 286 paragraph 1, 289 sentence 2 BGB; XI ZR 88/92 ).

Interest on arrears must also be paid on compensation (because an object can no longer be surrendered ) and compensation for reduction in value (because the value of an object has deteriorated) ( Section 290 BGB).

In civil proceedings, interest must be paid on monetary debts from the time they are pending and due, regardless of the debtor's default. No default interest is payable on this litigation interest ( § 291 BGB).


The debtor's default is terminated when its requirements no longer apply. This is primarily the case if the debtor renders his service retrospectively, offers to provide it in a manner appropriate to justify the delay in acceptance or if the delay no longer applies due to the transfer of compensation instead of the service or withdrawal .

Burden of proof

The obligee must provide evidence of all the prerequisites for default, with the exception of fault, as well as the compensation claimed.

The debtor has to prove that his default in performance was not at fault, as one always suspects his fault (§§ 276 Paragraph 1, 278 BGB).

See also

Individual evidence

  1. BGHZ 174, 77 .
  2. ECJ, April 11, 2019 - C-131/18. In: Legal Information Systems, accessed January 2, 2020 .
  3. 40 EUR lump sum to be offset against court fees? In: Institute for Knowledge in Business. November 5, 2019, accessed January 2, 2020 .
  4. ^ Draft law to combat late payment in commercial transactions. (PDF; 0.3 MB) In: German Bundestag, May 5, 2014, p. 19 , accessed on January 2, 2020 .
  5. Joachim Muth: default fee in labor law. Dr. Schneider & Partner Rechtsanwaltsgesellschaft, August 30, 2018, accessed on January 13, 2019 .
  6. ^ Federal Labor Court, judgment of the 8th Senate of September 25, 2018 - 8 AZR 26/18
  7. Hans-Martin Wischnath: Labor courts contra Federal Labor Court. DGB Rechtsschutz, November 15, 2018, accessed on January 13, 2019 .
  8. Decided ... but not final yet . Late payment employer | Entitlement to a lump sum for delay. In: DGB legal protection (ed.): Right so! November 6, 2018, ISSN 1861-7174 , p.   5 ( ).