cancellation

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A cancellation (or cancellation booking , in short: cancellation ; from Italian stornare , "undo", from Latin extornare , "turn off") is the reversal of a booking made on an account in accounting and generally in business . The reversal of a contract is also colloquially called cancellation, but legally it is a withdrawal .

General

The word cancellation comes from accounting and bookkeeping . The cancellation was preceded by a wrong booking. Business transactions that have been incorrectly booked can no longer be removed or deleted due to the principles of balance sheet clarity and balance sheet truth in accounting, but must be offset by an opposing booking. This requires Section 239 (3) of the German Commercial Code ( HGB) , according to which an entry or a record may not be changed in a way that could no longer make the original content identifiable ( ban on erasing ). For this purpose, all amounts must be posted on their opposite side, active on the passive and vice versa ( general reversal ). Simple deletion is not possible because deleting the entire business transaction would disappear from the bookkeeping.

In many areas of the economy, we speak of cancellation, for example when it comes to the cancellation of orders in trade , insurance , business or air travel . This is also based on postings that have to be canceled again by offsetting postings. Under certain circumstances, however, cancellation fees or even contractual penalties apply in these areas (see also sales contract ). According to § 165 VVG, the policyholder of a life insurance can terminate the insurance relationship at any time for the end of the current insurance period, whereby the life insurance is converted into a premium-free one ( § 166 VVG).

While an underlying business transaction is terminated with a cancellation , the core of the transaction is retained when the booking is rebooked .

Legal issues

In all branches of industry where incorrect postings have to be corrected, the term cancellation applies to this business transaction . However, it is also used where there is no incorrect booking to be corrected, but a contract or transaction is to be reversed. However, the law does not speak of cancellation, but requires special legal acts .

Outside of banking , the "cancellation" relates in particular to contract law , tenancy law , travel law or insurance law .

General

The cancellation is not a legal term , but depending on the legal area , it is a declaration of intent with other names. A distinction must first be made between the "cancellation" of a contract offer and the cancellation of a legally effective contract:

According to the prevailing opinion, a cancellation is the dissolution of a contract on the basis of a mutual agreement with the cancellation of all obligations for both contracting parties. The use of the words "annulment" or "cancellation" indicates a will to terminate; Suspension , on the other hand, means that the contract is only temporarily not to be fulfilled.

Banking

The cancellation booking is of particular importance in banking. In 2004, the volume of cashless payment transactions processed by credit institutions in Germany amounted to around 15 billion bookings with a volume of around 33 trillion euros, that is around 180 booking items per inhabitant in one year. The giro transfer accounted for 88% of this. This bulk payment transaction is highly standardized and engineered at banks and provided with plausibility checks, but errors cannot be avoided.

Cancellation bookings in the terms and conditions

In terms of general terms and conditions , a distinction is made between the point in time at which a cancellation booking is made. This is why No. 8 para. 1 of the general terms and conditions banks, the cancellation booking before an invoice is closed , while in No. 8 no. 2 AGB banks are talking about a correction entry if an incorrect credit is only discovered after an account has been closed. According to No. 8 Para. 1 of the General Terms and Conditions, the bank can only make use of its right of cancellation if it is entitled to repayment under substantive law. Incorrect postings must therefore justify a material repayment claim by the bank. This right of cancellation is only intended to serve as a simple means of enforcing the bank's refund claim. Cancellation is only possible until the incorrect credit has been entered in a statement of accounts and this has also been approved by the bank through acknowledgment of the balance . In addition, no. 8 Para. 1 of the General Terms and Conditions clearly express the objection of the bank customer that he has already disposed of the amount of the incorrect credit. This concerns the bank customer's defense of depletion .

In contrast to a cancellation booking, a bank customer has a stronger legal position in the case of a correction booking according to No. 8 Paragraph 2 of the General Terms and Conditions. He can object to the correction entry and thereby have the bank credit the amount back to his account and claim its repayment claim separately. The bank may then have to take legal action and prove that it inadvertently made the booking. The lawsuit must then be based on unjust enrichment ( Section 812 (1) BGB).

The terms and conditions expressly relate cancellation bookings to erroneous credits , however, account debits are not recorded. The banking industry assumes that the bank's own debits are not made in error and that debits from the direct debit procedure or other dispositions by the bank customer are contradicted. An account debit from a payment transaction is only effective for the bank customer if he has consented to it ( authorization ; § 675j BGB). As long as the debit from a payment order is revocable, the bank customer can revoke his payment order (Section 675j Paragraph 2 BGB).

Cancellation right in case law

However, case law and literature differentiate according to whether the incorrect posting is due to internal bank causes or whether the error was caused by an erroneous transfer by a third party. If a bank mistakenly credits a customer's current account with an amount that is not due to the customer, a legal and economic distinction is made between the following situations:

  • The credit is made due to an internal oversight without a transfer order from another customer (so-called incorrect booking ) or
  • the credit is issued due to an erroneous transfer of a sum of money by a third party (so-called incorrect transfer ).

While the incorrect posting only records incorrect credits and debits between accounts within the same bank, the incorrect transfer concerns the distressed transfer of funds from bank to bank. Since the credit advice of a bank usually represents an abstract promise of debt or an acknowledgment of debt towards the customer, the account holder has a right to payment from the bank when the credit is posted on the basis of the giro contract, regardless of any existing rights of reclaim and contestation.

The right to cancel regularly requires the bank to make a mistake when making the credit. These are credits to which the customer is not entitled and which he would have to surrender according to the rules of unjust enrichment. The purpose of the right of cancellation is to avoid the difficulties and risks usually associated with the assertion of such claims and to place the legal position of the bank on an independent basis, independent of the uncertainties of the right to enrichment.

Until the decision by the BGH in criminal matters, the prevailing opinion in the specialist literature assumed that the account holder would not receive a payment claim in the event of an incorrect booking due to the bank's right to cancel, but that when the amount was withdrawn, he implicitly declared that he would request payment from a credit balance due to him. With the cited ruling of November 8, 2000, the BGH denied this, however, citing the civil law legal situation. Because even before exercising a possible cancellation right, the customer is materially entitled to the corresponding credit.

Spectacular case

The case of an online bank in May 2012 was spectacular when it mistakenly credited its customer with 200 million euros. The judgment of the LG Itzehoe shows that the bank customer was mistakenly credited with 200 million euros on a Friday. The account holder transferred 10 million euros of this to his bank account on the same day. The online bank had discovered the incorrect credit after 15 hours and canceled it retrospectively, so that the bank customer had overdrawn his online account with 10 million euros for 3 days . From the short overdraft period, it can be concluded that the customer did not use the 10 million euros, but transferred it back on Monday. LG Itzehoe failed to calculate debit interest in a default judgment by the online bank . The main point has not yet been decided. However, it can be assumed that the bank customer cannot make use of the defense of depletion . Even if he had used the 10 million euros for very unusual purposes, he would have to put up with the charge of bad faith. Such an unusually large amount, which was not an everyday occurrence for the customer, should have aroused his suspicions . From No. 11, Paragraph 4 of the General Terms and Conditions for Banks, the account holder has, among other things, the obligation to check the correctness of the account statements and other communications from the banks. Furthermore, there is a duty of care on the part of the customer to avoid damaging the bank as far as possible and reasonable. A breach of this duty of care should be considered if an account balance shows a completely unusual amount. He therefore had to know that these were payments from third parties that were not due to him. At least with knowledge of all the circumstances he has deliberately pretended to be ignorant. This is equivalent to positive knowledge, so that the bank customer is obliged to repay. This repayment obligation also includes the overdraft interest because the bank account must be set up as if the transactions in the millions had never occurred.

effect

The cancellation changes the material legal situation because it removes the customer's claim from the credit. The right of cancellation is given for every form of incorrect booking. The bank only has to be entitled to a corresponding claim for repayment from its customer. Regardless of the cause of the error, the materially incorrect credit entry on the account also gives rise to a claim from the abstract promise of debt contained therein according to § 780 BGB, regardless of whether it is a defect as a result of a transfer order or another incorrect booking within the framework of a Giro contract.

The credit is legally both a service by the bank to the remitter and a service by the remitter to the recipient, but neither a service by the remitter to the bank nor a service by the bank to the recipient of the transfer. From this it follows that, in terms of enrichment law, compensation must be made either between the bank and the transferring party (if the transfer order - coverage ratio - is incorrect) or between the transferring party and the transfer recipient (if the currency ratio is incorrect). However, there is a breach of enrichment by the bank against the transfer recipient if the bank credits the amount twice or even ten times the correct amount. When the incorrect credit is canceled, the bank will restore the status and account balance that existed without the credit.

Gastronomy, hotels, tourism

In gastronomy , in the hotel industry or in tourism , people often speak of bookings that lead to a reservation and that are to be canceled again. With such bookings, a contract has been concluded that must be fulfilled by both contracting parties . If the contractual goals are no longer desired by one of the two contractual partners, the contract can only be canceled by terminating the contract and subsequently rescinding it. Contractual penalties (e.g. cancellation fees) are usually provided for this. When traveling abroad, please note that free cancellation is only possible if a German travel warning or an entry ban has been issued in the destination country.

Where tenancy law applies, as in the case of the accommodation contract for overnight stays in hotels or restaurants, the tenant ( guest ) is not exempt from paying rent (accommodation costs) in accordance with Section 537 of the German Civil Code ( BGB ) for personal reasons (illness, accident) or factual reasons (e.g. no snowfall in the area of ​​the ski hotel) is prevented from exercising its right of use. These life risks must not affect the hotelier, who, however, has to take into account the expenses saved by the cancellation. A free cancellation can be contractually agreed up to a certain date , so that the rental contract can be canceled by mutual agreement by the date. However, if there is no termination agreement , tenancy law has no statutory right of withdrawal. Unilateral cancellation or non-use ( no-show ) by the guest is not permitted. Therefore, the guest must pay the agreed price if he is unable to do so for reasons of his personal risk area.

Air travel

Cancellations are of particular importance in air traffic . The provisions of the contract for work and services apply to the (air) passenger transport contract . The passenger can therefore terminate the contract of carriage at any time in accordance with Section 649 of the German Civil Code. The termination has the consequence that the air transport company is entitled to demand the agreed remuneration for the transport, but must deduct what it saves in expenses as a result of the termination of the contract or which it acquires through other use of its labor . However, the airline may use a clause to waive the traveller's rights, which are standardized in Section 649 of the German Civil Code, so that the cancellation of a flight booking can be effectively excluded.

Package tours

In German travel law , the cancellation is called "withdrawal before the start of the journey" and is regulated in § 651h BGB. Thereafter, the traveler can withdraw from the travel contract at any time , whereby the tour operator loses its entitlement to the agreed travel price , but can instead demand appropriate compensation. This provision allows the establishment of reasonable compensation flat rates in pre-formulated general travel conditions, for example with regard to the period between the declaration of withdrawal and the start of the journey.

Others

In the insurance sector has the cancellation great importance. Cancellation is the termination or termination of an insurance contract before the end of the contractual term . A contractual termination in the actual sense does not fall under the term of cancellation. If the minimum term of an insurance contract is not reached, for example due to cancellation, the unearned part of the commission must be reimbursed to the policyholder . The cancellation risk consists of the risk that the policyholder cancels an insurance contract before the insurance period expires. This risk can be countered in the balance sheet by means of cancellation provisions; In accordance with Section 31 (1) No. 1 RechVersV, they are other technical provisions and cover the risk of cancellation or repurchase by the policyholder. Since the conclusion of an insurance contract is immediately reflected in the balance sheet and profit or loss in the insurance sector, the risk of cancellation is particularly high. The frequency of cancellations is therefore measured by the cancellation rate .

In building society savings , the building society contract is canceled if it was terminated before the closing fee was paid in full.

effect

A successful cancellation leads to the immediate termination of a contract. If the contractual partners have already performed mutual services, these must be returned as if a contract had never existed. The cancellation accepting company may in its general terms and conditions of the content checking provide underlying regulations with regard to possible cancellations that affect the possible cancellation period and cancellation fees.

See also

Individual evidence

  1. ^ Franz Vahlen Verlag (Ed.), Yearbook of German Law , Volume 29, 1931, p. 38
  2. ↑ Richard Riedl / Martin Rusam / Johann Kuffer (eds.), Handkommentar zur VOB , 2008, p. 982
  3. ↑ Dirk Blissenbach, The Giro transfer as an instruction business , 2009, p. 19
  4. ↑ Reinhard Schlenke, AGB der Banken , 1984, p. 152 .
  5. ^ Dorothee Einsele, Banking and Capital Markets Law , 2006, p. 47 .
  6. ↑ BGHSt 46, 196
  7. ↑ BGH NJW 1991, 2140
  8. ↑ BGHSt 39, 392 , 395 f.
  9. ↑ BGHSt. 46, 196
  10. ↑ Roland Hefendehl, Munich Commentary on the Criminal Code , Section 263 Rn. 107; ders. NStZ 2001, 281
  11. ↑ Welt Online from May 4, 2012, multimillionaire through bank errors .
  12. ^ LG Itzehoe, judgment of May 3, 2012, Az. 7 O 266/11.
  13. ↑ BGHZ 72, 9
  14. ↑ OLG Celle, judgment of June 8, 2005, Az .: 3 U 11/05.
  15. ↑ BGH NJW 1987, 185
  16. ↑ BGHZ 87, 246 , 252
  17. ^ Graf von Westphalen, Contract Law and General Terms and Conditions Clauses , 2000 - Banken- und Sparkasse General Terms and Conditions, marginal no. 40 ff.
  18. ↑ Kurt Schellhammer, Law of Obligations according to Claim Basis , 2008, p. 456 .
  19. ↑ BGHZ 72, 9.
  20. ↑ BGH NJW 1987, 185.
  21. ^ Karl Heinz Hänssler, Management in the Hotel Industry and Gastronomy , 2011, p. 387
  22. ↑ Ernst Führich, Basic Knowledge of Travel Law , 2015, p. 190 f.
  23. ↑ BGH, judgment of November 14, 1990, Az .: VIII ZR 13/90 = NJW-RR 1991, 267
  24. ↑ Jens Peter Janköster, Passenger Rights in International Air Traffic , 2009, p. 91
  25. ↑ BGH, judgment of February 16, 2016, Az .: X ZR 97/14 = NJW 2016, 2404 , Rn. 14th
  26. ^ BGH, judgment of October 25, 1984, Az .: VII ZR 11/84 = NJW 1985, 633
  27. ↑ BGH, judgment of March 20, 2018, Az .: X ZR 25/17 = BGH NJW 2018, 2039
  28. ↑ Fred Wagner (ed.), Gabler Versicherungslexikon , 2017, p. 877
  29. ↑ Fred Wagner (ed.), Gabler Versicherungslexikon , 2017, p. 5
  30. ↑ Fred Wagner (ed.), Gabler Versicherungslexikon , 2017, p. 878