Installment business
Part payment business (also hire purchase or financial purchase ) is an agreement between the entrepreneur and consumer in the trade in goods that, as an exception , the payment of the purchase price due is not to be made immediately in one sum, but by partial payment in at least two payment installments . The law does not speak of installments, but of partial payments. This is the total amount of the purchase price divided into smaller partial amounts.
General
In the case of a sales contract , the installment payment represents a partial performance by the debtor , which the buyer is generally not entitled to ( § 266 BGB ), because according to the sales contract law, the entire purchase price in one sum is due immediately . Partial payments are a breach of the step-by- step principle, especially in the case of purchase contracts for everyday life , which requires both contracting parties to provide full performance at the same time ( Section 320 BGB).
The parties to the sales contract can deviate from this rule and agree that the purchase price should only be due at a later date. If there are agreed partial payments, it is legally a question of financial aid. They are divided into deferred payments and other financial aids, the latter including finance leasing and hire purchase . The most important sub-case of deferred payment - which represents a deferral - is the installment transaction. The neologism "financial purchase" for installment transactions has been demonstrable since 1993 at the latest. This is to make it clear that the purchase price is financed .
history
According to Werner Sombart, the installment credit has its origins around 1750 in London ("installment credits"). In 1807, the then oldest furniture store in the USA, Cowperthwait & Sons , introduced the installment loan using a payment plan in New York . The "Singer Sewing Machine Company" began to sell sewing machines according to the installment system around 1850. The German retail trade followed in 1849 in the installment business with the Hamburg “goods credit house” Alex Friedländer , who sold textiles and later furniture and other furnishings for weekly or monthly rates. The installment system then continued to develop as planned in France, where in 1856 the Parisian department store Grands Magasins Dufayel offered the installment loan. It is said to have opened customer accounts for its buyers and issued purchase receipts ("bons d'achat") in the same amount. In January 1917, the “Commercial Investment Trust” received a patent for an “Auto Financing Plan for Wholesalers” and began financing racing cars.
Legal bases
While partial payments are not permitted in sales contract law, loan law expressly provides for the possibility of partial payments.
content
Based on the partial payment option is the sale of consumer goods of § 474 BGB. The most important prerequisite is that a contract is concluded between the entrepreneur and the consumer, the content of which is the purchase of a specific movable object or the provision of a service . In addition, the deferred payment must be paid in the form of the installment transaction ( Section 491 (2) BGB), i.e. contain a surcharge on the cash purchase price. Free deferrals of payment ( repayment installments without a partial payment surcharge or deferral without a deferral fee) do not lead to the application of consumer credit law. If the prerequisites are met, it is a part payment transaction, which must be made in writing according to Section 492 (1) BGB . The written form can only be dispensed with if the partial payment transaction comes about via distance selling ( Section 507 (1) sentence 2 BGB). This is intended to facilitate the mail order business . After the purchase contract has been concluded, at least two more installments must be paid when paying in installments. Monthly, quarterly or half-yearly installments can be agreed as the payment frequency.
Validity
According to Section 506 (1) of the German Civil Code (BGB), the provisions for consumer credit apply to partial payment transactions . If the costs according to § 494 Paragraph 4 BGB or the securities according to § 494 Paragraph 6 Sentence 2 BGB are not specified in the contract, they are not owed by the consumer or cannot be requested by the entrepreneur. Due to the exceptions of § 491 Paragraph 2 No. 1 BGB, partial payment transactions according to § 506 Paragraph 4 Sentence 1 BGB do not apply to minor transactions with a cash price of less than 200 euros.
The special provisions of § § 507 and § 508 BGB apply exclusively to partial payment transactions . If the written form of § 506 Paragraph 1, § 492 Paragraph 1 BGB is not complied with, the installment transaction according to § 507 Paragraph 2 Clause 1 BGB is void , unless the item has already been handed over to the consumer (§ 507 Paragraph 2 Sentence 2 BGB). According to § 508 BGB, the entrepreneur has a right of withdrawal in the event of default in payment by the consumer. According to § 505a , § 505b , § 505c , § 505d BGB, the entrepreneur is obliged to subject the consumer to a credit check. This regulation requires non-banks to assess their credit risk in the same way as credit institutions .
Late payment
Unpunctual, wholly or partially missing installment payments lead to debtor default . This occurs automatically according to Section 286, Paragraph 2, No. 1 of the German Civil Code (BGB) because the installment payment is determined by the calendar . In the case of partial payment transactions, the entrepreneur can withdraw from the purchase contract ( Section 498 sentence 1 BGB in conjunction with Section 505 Paragraph 3 BGB) if the consumer is in default of payment according to Section 498 BGB. A default in payment according to § 498 BGB is to be assumed if the borrower is in default with at least two successive installments of at least 10% of the loan amount (for installment transactions up to 3 years term) or at least 5% (over 3 years term).
Obligation to reimburse the obligee in the event of bankruptcy (insolvency challenge)
If the creditor and the debtor enter into an installment payment agreement because the debtor cannot pay the full amount when the due date, there is a risk in business transactions for the creditor that, in the event of the debtor's subsequent insolvency, he will have to reimburse the installments received to the insolvency administrator. The basis are the provisions of the so-called insolvency avoidance , in particular § 133 InsO. Such challenges are repeatedly the subject of numerous court decisions.
handing over
In the purchase contract it can be agreed that the delivery and transfer of ownership of the object of purchase takes place either immediately or, within the scope of a retention of title, the transfer takes place immediately, but the transfer of ownership only takes place after payment of the last installment ( Section 449 (1) BGB). In both cases, the installment payment turns the seller into the lender with the typical credit risks up to the risk of insolvency . In these cases, the deferred payment represents a loan from the seller to the buyer ( § 488 BGB), which entitles the latter to demand a higher purchase price than in the case of cash payment. If, however, the goods are transferred and handed over at the beginning, the seller makes an advance payment and grants a customer credit . If the item is only transferred and handed over when the purchase price has been paid in full, it is not a part-payment transaction.
Financial purchase
To separate the trading business from the financing part, is often associated with the goods group specialized bank , such as a partial payment bank , auto Bank or Group Bank involved in the financial business. By including these institutions, it becomes clear that installment agreements represent a credit transaction under banking law . These agreements contain the amount and number of agreed payment installments as well as their respective due dates . Since banks are subject to the provisions of the German Banking Act (KWG), they must check the creditworthiness and creditworthiness of consumers in accordance with Section 18 KWG.
International
Installment transactions of this kind apply in all EU member states , as the cited BGB regulations are based on several EU directives such as 1999/44 / EC of May 25, 1999 or 2011/83 / EU.
Individual evidence
- ^ Markus Artz / Peter Bülow (eds.): Handbook of consumer private law. 2005, p. 316.
- ↑ Dieter Herberg / Michael Kinne / Doris Steffens / Elke Tellenbach / Doris Al-Wadi: New vocabulary: Neologisms of the 90s in German. 2004, p. 115.
- ↑ Werner Sombart: Modern Capitalism , Volume I, 1928
- ^ Edwin Robert Anderson Seligman : Installment selling , 1927, Vol. I., p. 14.
- ^ Karl Muhs / George Max Jahn: Festgabe for Georg Jahn at the completion of his 70th year of life. 1955, p. 159.
- ^ Waldemar Koch: The installment business in trade and industry and its financing. 1931, p. 10.
- ↑ Joseföffelholz: Revision course on business administration. 1971, p. 576.
- ↑ Heinrich Wickum: The instruction business of installment Banks 1960: 27th
- ↑ Markus Artz / Peter Bülow (eds.): Handbuch Consumer Private Law , 2005, p. 316 f.
- ^ Peter Bülow / Markus Artz: Consumer Private Law. 2014, p. 141 f.
- ↑ Jan Schürnbrand: Consumer Protection Law. 2014, p. 69.
- ↑ BGH NJW 1993, 128
- ↑ Bettina Heiderhoff / Frank Skamel: Execution Law. 2013, p. 78.
- ↑ BGH, judgment of March 24, 2016 - IX ZR 242/13; Archived copy ( Memento of the original from May 10, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ EU Directive 1999/44 / EC of May 25, 1999, ABl. L 172.
- ↑ EU Directive 2011/83 / EU of October 25, 2011, ABl. L 304.
- ↑ Directive 1999/44 / EC will be repealed from January 1, 2022 by Directive (EU) 2019/771 (sales of goods) .
