Default interest rate

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The default interest rate ( English default interest ) is in the economy , a rate that the delay in payment by the debtor to the creditor by virtue of law or contract must be paid.

General

Interest on arrears is only available for due financial debts . Interest on arrears is intended to compensate for the claim for damages that the obligee has due to the arrears in payment. As early as 1836, the lexicographer Heinrich August Pierer stated that the default interest served both as a penalty for the defaulting debtor and as compensation for the creditor. Default interest set the due date of the debt and money that is made after the due date reminder ahead ( § 286 para. 1 BGB ). According to Section 286 (2) of the German Civil Code (BGB ), a reminder is particularly unnecessary if there is a calendar-based payment obligation ( payment deadline , date ) or if an agreed event justifies the payment obligation (" payment upon delivery of the goods"). Interest on arrears is charged in addition to the regular interest .

A distinction must be made between the BGB (“interest on arrears”) applicable to consumers and the HGB (“maturity interest ”), which applies to merchants with claims from mutual commercial transactions . Interest on arrears is only payable in a consumer-friendly way if a delay in payment (i.e. non-performance despite the due date) is due to both failure to observe the objective characteristics of the delay (warning, filing of a complaint , delivery of the dunning notice , calendar payment deadline, termination ) and the fault of the debtor.

history

The Babylonian interest law already knew regular interest, default interest, interest barriers and interest prohibitions . In the Roman Empire , Justinian I allowed default interest ( Latin usurae ex morae ) of 6%, but Roman law classified it as a subsidiary right . This still applies today according to Section 367 (1) of the German Civil Code, according to which the main performance obligation is capital . It was incumbent on the Roman judge to impose a penalty ( Latin poena ) in the form of default interest ( Latin usura ex mora ) on the debtor in the event of culpable default in performance ( Latin mora solvendi ) . Because they were not independently actionable, according to Hermogenian , the judge had to award them ex officio ( Latin officio judis ).

Medieval Cologne documents from Jewish moneylenders from the years 1250, 1270 and 1272 suggest the calculation of interest on arrears, as payment was not made on the expiry date. In Berlin in 1367 the council forbade the sale of loan receivables that opened up the prospect of interest on arrears (“damage”). In 1393, the Glurnser Jews demanded default interest of 86 2/3%. Since 1600 there was a legally limited default interest of 4% or 5% due to the Reichsdeputationsgabe von Speyer.

The General Prussian Land Law (APL) of June 1794 recognized default interest (I 11, § 833 f. APL) and gave the creditor proof of higher damage. In I 12, § 331 APL it was regulated: “If the heir is responsible for a culpable delay in paying the legacy, he will also be charged the statutory default interest”. Since then the German Reich laws have approved the default interest without restriction. The ADHGB of May 1861 stipulated interest on arrears at 6% in Art. 287 ADHGB. This was followed in Austria by the ABGB of January 1812 (§ 1333 in conjunction with § 1000 ABGB) and Switzerland with the OR in January 1883 (Art. 106 OR), whereby the default interest was given the character of a minimum damage.

To improve payment behavior, the European Union issued EU Directive 2000/35 / EC, a regulation on late payment in June 2000 , which was replaced by Directive 2011/7 / EU of February 2011. According to this, default of payment is “a payment that has not been made within the contractual or statutory payment period” (Art. 2 No. 4). Interest on arrears is the statutory interest in the event of late payment or the interest agreed between companies (Art. 2 No. 5). The regulation transformed according to § 288 Paragraph 2 BGB (in Austria: § 352 UGB ) provides for 9% default interest for all transactions without the involvement of a consumer , otherwise 5% above the base interest rate .

Legal issues

The central German legal norm for default interest is § 288 BGB, according to which a monetary debt is to be charged interest from the beginning of the debtor's default. The debtor's default begins in particular with the due date or with the reminder (§ 286 BGB). The assertion of further damage is not excluded. A contractual exclusion of statutory default interest is void ( Section 288 (6) BGB). The calculation of default interest on interest is prohibited according to § 289 BGB. For the obligation to pay default interest, § 367 BGB stipulates that this must be paid before the main debt. The obligee can also demand a higher default interest rate by means of an individual agreement (Section 288 (3) BGB). In the case of a corresponding agreement in the General Terms and Conditions , an agreed default interest rate which, according to the usual course of events, exceeds the expected damage, however, leads to an ineffective agreement. In addition, the debtor must be expressly given the option of providing evidence of minor damage in the terms and conditions ( Section 309 No. 5 BGB).

The law differentiates between consumers and companies when it comes to the amount of default interest . The base interest rate determined in accordance with Section 247 of the German Civil Code serves as the reference value :

The amount of the default interest margin depends on whether someone is a consumer or a company.

consumer

If at least one consumer is the debtor ( consumer-to-consumer , consumer-to-business and consumer-to-administration ), a monetary debt according to Section 288 (1) of the German Civil Code (BGB ) must bear interest at a rate of 5 percentage points above the base rate during the delay become.

Companies

All other legal transactions without consumer involvement ( business-to-business , business-to-administration and administration-to-administration ) are even subject to interest at 9 percentage points above the base rate (Section 288 (2) BGB). According to Art. 3 Dir. 2011/7 / EU, in business transactions between companies (Art. 3 Dir. 2011/7 / EU) or between companies and public bodies (Art. 4 Dir. 2011/7 / EU), the obligee may pay interest on arrears without prior warning calculate if he has fulfilled his contractual obligations and has not received the due payment, unless the debtor is not responsible for his delay in payment. According to section 353 sentence 1 of the German Commercial Code (HGB) , merchants are entitled to charge interest on arrears for their claims from mutual commercial transactions from the due date.

Real estate consumer loan agreements

For consumer real estate loan contracts , the base rate plus 2.5 percentage points p. a. ( Section 497 (4) sentence 1 BGB).

Start and end of the calculation

For the day on which the debtor receives the reminder justifying the default ( Section 286 (1) BGB), no default interest is payable ( Section 187 (1) BGB). The same applies to the exception regulations for self-reminders (Section 286, Paragraph 2, No. 3 BGB) and immediate default (Section 286, Paragraph 2, No. 4, BGB). Interest is only payable from the first day of default (Section 187, Paragraph 2, Clause 1 of the German Civil Code (BGB)) for the exception provisions that the time of performance can either be determined according to the calendar or calculated on the basis of a previous event. The same applies if the delay occurs without a reminder (Section 286 (3) BGB).

The obligation to pay interest ends at the end of the day on which the debtor pays in full.

International

In Switzerland , the debtor does not have to pay interest on arrears until the order for payment is served or the action is initiated (Art. 105 (1) OR ). According to Art. 104 Para. 1 OR, the default interest is five percent of the claim amount per year. According to Art. 105 Para. 3 OR, no further default interest may be charged from default interest. Art. 314 para. 3 CO bans except for savings and current accounts to compound interest .

In Austria , the default interest rate according to § 1333 ABGB in connection with § 1000 ABGB is 4%, whereby compound interest is also possible. If the obligee has allowed the interest to rise to the amount of the principal debt without a legal warning, the right to demand further interest from the capital expires (§ 1335 ABGB). In France , according to Art. 1153 Civil Code, interest on arrears ( French intérêts moratoires ) is a final sanction for default with a monetary debt. In Italy , according to Art. 1284, Paragraph 1 of the Civil Code, the default interest rate is 3.5%. In Greece, Art. 345 Clause 1 ZGB grants the debtor in the event of default of the debtor a right to “the default interest determined by law or legal transaction” ( Greek τόκος υπερημερίας ; tókos yperemerias ; “late interest ”) without the obligation to prove damage .

The common law has known since 1893 no statutory right to interest, rather they are contractually ( English contractual interest ) to be agreed.

See also

Web links

Individual evidence

  1. ^ Heinrich August Pierer (ed.), Universal-Lexikon, or complete encyclopedic dictionary , Volume 26, 1836, p. 694.
  2. ↑ Josef Kohler / Arthur Ungnad , Hammurabi's Law , Volume III, 1909, pp. 307, 324 f.
  3. ↑ Thomas Gimmerthal, the Doctrine of the Ofiicialzinsen generally , in: AcP 73, 1888, S. 287th
  4. ↑ Hermogenian, Digesten , 19, 1, 49, 1
  5. ^ Adolf Kober, Studies on the Medieval History of the Jews in Cologne on the Rhine , Volume 1, 1903, p. 25
  6. ↑ Herbert Helbig, Society and Economy of the Mark Brandenburg in the Middle Ages , 1973, p. 101.
  7. ^ Heinrich Honsell, Römisches Recht , 2015, p. 96.
  8. ↑ Friedrich August Quistorp , Legal Comments , 1798, pp. 197 ff.
  9. ↑ Ernst : MüKo . 6th edition. 2012, § 286 marginal note 15 .
  10. ↑ Ernst : MüKo . 6th edition. 2012, § 286 marginal number 17 .
  11. ↑ Philippe Ruedin / Urs Christen / Irmtraud Bräunlich Keller, OR for everyday life , 2013, p. 141 f.
  12. ↑ Catham and Dover Railway Co. vs. South Eastern Railway Co., 1893, AC 429.