Deferral
In the case of deferral , the due date of a claim or of individual repayment times is postponed while maintaining the ability to meet. It is part of the restructuring measures and is intended to bridge a short-term strained liquidity situation of the debtor .
General
The contracting parties are generally bound to comply with the contractual obligations entered into within the framework of the legal principle “ Pacta sunt servanda ”. However, unexpectedly, a party unable originally agreed performance times ( performance time ) to comply, they should not be in default ( § 286 BGB to come), the negotiating creditors convince not to make his claim asserted during the deferral period. Since both contracting parties enter into performance obligations in contracts, a deferral can affect both payment obligations and other performance obligations arising from a contract. In practice, however, the deferral is usually reduced to payment obligations - for example from loan agreements .
Legal bases
Statutory regulations on deferrals can be found in civil law and public law .
A deferral is not issued unilaterally, but it is a debt amendment contract ( § 311 Paragraph 1 BGB) between all contracting parties involved, which basically leaves the existence of a claim unaffected. The obligee is therefore not obliged to deferment, but represents a voluntary compromise. The deferment agreement prevents the beginning of the debtor's default with all negative consequences and eliminates the default for the future. In practice, the deferral agreement contains a specific deadline with which a change in the performance time is connected. As a subsequent amendment to the contract, a deferral is usually linked to the form of the basic contract, so in the case of land purchase contracts , a notarization obligation is required ( Section 311b BGB). For reasons of proof, if there is freedom of form, the arbitrary written form ( Section 127 BGB) is usually chosen.
A deferral leads to the debtor's right to refuse performance and inhibits the statute of limitations ( § 205 BGB). It is a subsequent change to the contractually stipulated due date. The obligee is permitted to revoke the deferral in the event of a significant deterioration in the economic situation . A deferral can be canceled at any time due to § 158 BGB ( condition ). If, after the deferral has expired, payment is not made despite a reminder and a deadline , the rights from Section 326 of the German Civil Code - in particular withdrawal - can be asserted.
species
The agreed deferral is an agreement between the creditor and the debtor, through which the due date of a claim is postponed by a debt amendment contract. Tacit or implied deferral , on the other hand, lies in the fact that the obligee holds still, who in particular does not issue a reminder. While the limited deferral contains a new, specific performance date, there is no special performance date for the unlimited deferral . In the case of the latter, the obligee can set a fulfillment date at his reasonable discretion (§ § 315 , § 316 BGB). The deferral can also be linked to a subsequent condition ( § 158 BGB) so that the due date occurs before the end of the period if the debtor unexpectedly has sufficient financial resources.
debtor
The deferral serves to save an existing outstanding claim which, in the opinion of the parties, can only currently not be met by the debtor. The attempt to enforce the claim would potentially lead to insolvency on the part of the debtor, which from the perspective of the obligee carries the risk of having to write off the claim for good. It depends on the type of debtor in which form a deferral can take place.
Companies
A debtor in a corporate crisis will try to obtain a deferral if he is in temporary financial difficulties and can demonstrate to his creditor that he can repay his debts on time at a later point in time. It is the simplest form of restructuring that can bridge short-term illiquidity . The affected creditors neither have to waive their claims in whole or in part by way of debt relief , nor do they have to grant additional risky restructuring loans.
States
The countries that have fallen into a financial crisis have moved to the fore of the public debate . Here, too, deferrals are the least stressful measures for the creditors if a state cannot settle its debts by the due date. If he expects sufficient income after the due date , he can apply for a deferral from his creditors. Forbearance agreements with states with several creditors are known as moratorium . Organizations such as the IMF , Paris Club and London Club are involved in this.
Natural people
As borrowers from credit institutions, natural persons are usually affected by deferral issues. Often, scheduled repayments are suspended in order to bridge a temporary liquidity shortage of the borrower. The later the deferral of annuity loans , the greater the repayment portion and the greater the relief for the debtor. In the case of overdraft facilities, there are usually no deferral issues because these loans are not linked to regular repayment dates. However, if the overdraft facilities, which are actually only invested for a short time, are not significantly and sustainably reduced by means of account credits for a period of more than six months, they are considered "frozen". "Freezing" is a kind of tacit deferral, as long as the credit institutions do not expressly request a repayment of the overdraft facility.
Special cases
In some cases, the law provides for a deferral in which the debtor would be hit by an unreasonable hardship if he paid immediately . A gain compensation claim can be deferred by the family court on application according to § 1382 Abs. 1 BGB if an immediate payment would lead to a deterioration of the living or living conditions of the debtor. In the case of inheritance, an heir can demand the deferral of a compulsory portion according to § 2331a BGB if the immediate fulfillment would hit him hard. As an administrative act, the tax deferral is subject to special regulations.
In the case of a subsequent installment agreement as a special form of deferral, the regulation to protect the borrower does not apply, so that the obligee can terminate the agreement if the payment is received slightly too late. Furthermore, the provision of the Loan Act does not apply to the deferral agreement in installment form, according to which the installments must be the same every month. Therefore, the contracting parties can agree on different rates.
Others
There is no deferral if the obligee only allows the debtor the time necessary to raise money. The setting of a grace period according to § 326 BGB is not a deferral.
For credit institutions, it should be noted that the deferral of loan receivables is not a credit transaction within the meaning of Section 1 Paragraph 1 Sentence 2 No. 2 KWG, unless the conditions are adjusted for the deferred amounts - for example in connection with an interest rate increase. In contrast to the prolongation , the deferral basically serves to save a loan claim that cannot currently be serviced without driving the borrower into bankruptcy . The regulation on deferral applies accordingly to the deferral of repayment installments and interest payments.
On the balance sheet date, the obligee is obliged, in accordance with Section 252, Paragraph 1, No. 4 of the German Commercial Code (HGB) to also evaluate those claims in his balance sheet for which deferrals have been issued. Since deferrals are part of the simple reorganization measures, it may be necessary to post them as dubious claims , but not as uncollectible claims. The debtor's request for deferral has convinced the obligee of the full collectibility of the claim at a later date. The classification as flawless or doubtful receivables depends on the forecast of the probability of repayment.
See also
Individual evidence
- ↑ Keyword "deferral" , Gabler's Wirtschaftslexikon online
- ↑ RG 113, 53, 56.
- ↑ BGH WM 1991, 2919, 2921.
- ↑ Joachim Gernhuber, The Fulfillment and Their Surrogates , 1994, p. 78
- ↑ Joachim Gernhuber, The Fulfillment and Its Surrogates , 1994, p. 80.
- ^ Jörg Baetge / Andreas Bausch / Matthias Beck, Unternehmenssanierung , 2011, p. 57.
- ↑ Subsequent installment agreements. Retrieved April 20, 2017 .
- ↑ RG 83, 181.
- ↑ "Notes on the facts of the credit business" BAFin - information sheet of January 8, 2009.
