Payment in advance
Payment (including prepayment or advance ; English advance payment ) is a payment term , the first one from the buyer payment of the purchase price demands before the seller to the contractual delivery of goods or assured service begins.
General
In sales law is in accordance with § 433 BGB for sales contracts , a " Payment train to train " provided ( Synallagma ). This means that the seller to the buyer to the purchase object passed has and the buyer at the same time as return the purchase price has to be paid. However, the terms of payment Notwithstanding the rules of this is that the supplier in advance / pre-payment, deposit , down payment , payment on delivery or payment terms with the buyer agreed. This is a graduated sequence in which the financial risk of non- payment for the supplier does not exist and is highest for the customer ( customer credit due to prepayment) or highest for the supplier and not available for the customer ( supplier credit due to payment term ).
Due to the advance payment, the “payment step by step” provided for in the law for sales contracts is postponed unilaterally at the expense of the buyer / client . For service contracts , the remuneration is in accordance with § 614 BGB after the performance of the services to be paid (the worker is thus to advance the obligation) in contracts for work remuneration is generally only in the decrease (payable § 641 1 BGB para.); the entrepreneur can, however, demand an advance payment ( Section 632a BGB). With these types of contract, an advance payment by the buyer / client is therefore not legally stipulated or an exception.
Purchase contract
According to the systematics of the law, the order of the contractual obligations should be observed in the purchase contract . In Germany, according to Section 433 (1) BGB, the seller of an item should first hand over the movable item to the buyer and obtain ownership of it . In accordance with Section 433, Paragraph 2 of the German Civil Code, the buyer must then immediately pay the seller the agreed purchase price. Insofar as the purchase contractual obligations train to train to be provided. The presented proposal of the legislature is not binding, however, because the sales contract law is mandatory law . According to § 320 BGB, both buyer and seller can make use of their right of retention and refuse performance until the other has fulfilled his main performance obligation from the purchase contract. This principle is broken with the principle of advance payment in individual contracts. In this case the buyer is obliged to pay the purchase price in advance . Only then does the seller have to transfer ownership of the item. In the case of prepayment, the buyer no longer has the option to withhold payment until delivery.
species
Prepayment is generally required in particular from buyers who are considered to be poorly solvent or unreliable or who are buying for the first time and whose creditworthiness has therefore not yet been clarified. In this way, the seller avoids his advance performance risk actually provided for by law. The alleged inadequate solvency of the buyer is legally irrelevant, because it is important to have “money has to be had” - a guarantee of the debtor inherent in German contract law with regard to his own financial performance.
Legally permissible advance payment
The tour operator must according to § 651t BGB advance payments of the traveler on the travel price before completion of the package only demand or accept where effective travel insurance certificate is (or in the case of the 651s § BGB tour operators safety is made ) and the traveler name and contact details of Kundengeldabsicherers ( or in the cases of Section 651s BGB, the name and contact details of the institution that offers insolvency protection) and, if applicable, the name and contact details of the competent authority designated by the state concerned. Advance payments of 20% of the travel price are permitted under travel law . The annuity is to be paid in advance ( Section 760 (1) BGB). In accordance with Section 9 of the Law on Remuneration of Lawyers (RVG), the lawyer can request an appropriate advance payment from his client for the fees and expenses that have arisen and are likely to arise . This means that the lawyers' fees are not due at the end of the process, but are due for partial services in the amount of the expenses incurred. Otherwise, the remuneration is due when the order has been completed or the matter has ended ( Section 8 (1) RVG). Notary fees are due upon termination of the procedure or the transaction, expenses of the notary and the fees immediately after they arise ( § 10 GNotKG ). Payment in advance for treatment by a doctor is not permitted , however, because according to Section 12 (1) GOÄ the remuneration is due if the patient has been given a corresponding invoice . In contrast to advance payments or final payments, advance payments within the meaning of Section 16 (2) No. 1 VOB / B do not require any construction work that has already been performed by the contractor .
Contractual advance payment
In online shops or Internet auctions advance often required, for example to the dispatch of - is - especially for new customers packages that cash - and the credit card fee to save. Here the purchase price is transferred in advance to the provider, who sends the goods after receipt of payment. Cash on delivery is not formally an advance payment because in terms of postal regulations, money and goods are handed over at the same time. A special technical form of prepayment is the prepayment meter used in private households for electricity purchase. The customer purchases a credit and thus pays ahead. When the credit is used up, the service draw ends automatically. Even prepaid -Contracts ( German "prepaid" ; as prepaid credit cards or prepaid discounter ) ask the customer for the acquisition of the advance payment risk. Fake shops are exclusively geared towards prepayment because they do not intend to deliver and are therefore geared towards internet fraud from the outset .
Prepayment in foreign trade
In foreign trade , the advance is common. This is the obligation of the buyer ( importer ) to pay the purchase price in full (advance payment) or in part ( down payment ) to the seller ( exporter ) at a time agreed in the sales contract before delivery of the goods . The reason for the payment condition in foreign trade can be that the exporter needs the purchase price to finance the production of the goods. Here the risks lie with the importer, who has no guarantee that the goods will actually be received in the agreed quality, quantity and on the agreed date. In order to ensure that the importer is assured that an advance payment is not used contrary to the contract, a bank is often required to provide a deposit guarantee .
While down payments only cover part of the purchase price, advance payments cover the entire purchase price.
Risks
The advantages of prepayment are only for the seller , who can be sure that the buyer pays and only then the goods are shipped / handed over. A risk here are unreliable providers with fraudulent intentions who do not send any goods despite receipt of money. The risk is reduced if the provider has been active in the market for a long time and no reports of fraud can be found about him. In order to reduce the delivery or prepayment risk for the contracting parties, many Internet providers work with an in-house point or evaluation system that is supposed to classify the reliability of the respective partner. As an alternative or in addition, online rating portals can be consulted, but they must be critically questioned with regard to their susceptibility to manipulation.
consequences
The advance payment represents a credit risk for the buyer until the seller has delivered the promised goods free of defects or provided the service; legally it is a performance risk for the buyer. If the seller to credit the advance, but even before delivery of the goods insolvent , the advance is an unsecured claim in the bankruptcy estate therefore the supplier and are at risk of debt loss -prone. Where prepayments are customary in the industry (e.g. for tour operators in accordance with Section 651k BGB), prepayment is secured by a bank guarantee or insurance ( security certificate ). In the business-to-business sector between companies , advance payments are therefore secured by a down payment guarantee.
Payment via PayPal or other micropayment systems as well as instant transfer is also an advance payment, because PayPal forwards the payment received from the buyer to the seller and asks him to deliver to the buyer. The buyer's fulfillment risk is only insignificant if there is buyer protection (such as on eBay ). Then eBay will refund the purchase price to the buyer.
In German online shops , prepayment is the payment method with 83% of all payments, followed by PayPal (60%).
Buyer / Importer's risk
The normal case of payment terms provided for by law is reversed when an advance payment is agreed, which means that the buyer now has to make advance payment with the payment and thus runs the risk of not receiving the goods - for whatever reason. There is a risk of prepayment fraud or prepayment fraud . Any type of prepayment turns the buyer into a lender with the typical credit risks up to and including bankruptcy of the seller before he has started delivery. The prepayment is a real customer credit that can signal that the seller lacks liquidity . More spectacular cases are the bankruptcies of the electricity providers Teldafax (June 2011) and Flexstrom (June 2013), which practiced a risky business model with tariff-based advance payments from customers and low prices on the energy market. Another risk for the buyer is that the alleged seller was unwilling to deliver from the start and is only interested in the buyer's money. Here the offense of fraud ( § 263 StGB ) is fulfilled. The buyer must be aware of these risks if he wants to accept an advance payment.
literature
- Richard Albrecht : Prepayment Company. The double sociological aspect and its practical consequences; in: sociology today, 6 (2013) 30: 26–29; online [1]
- Markus Breitschaft, Thomas Krabichler, Ernst Stahl, Georg Wittmann: Secure payment methods for e-government . In: Federal Office for Security in Information Technology (Ed.): E-Government-Handbuch. Bundesanzeiger Verlag, 2004. Updated version May 2005, ISBN 3-89817-180-9 .
- Markus Breitschaft, Thomas Krabichler, Ernst Stahl, Georg Wittmann: Payment processing on the Internet - meaning, status quo and future challenges . Regensburg 2006, ISBN 3-937195-12-2 .
- Markus Breitschaft, Thomas Krabichler, Ernst Stahl, Georg Wittmann: Risks of payment processing on the Internet - meaning, countermeasures and future challenges . Regensburg 2007, ISBN 978-3-937195-15-5 . ( Study as a PDF download from the BSI in the web archive of January 11, 2012)
- Hermann Lauer: Conditions Management. Design and enforce payment terms optimally, ISBN 3-87881-124-1
Web links
Individual evidence
- ↑ Julius von Staudinger, Eckpfeiler des Zivilrechts , 2005, p. 143
- ↑ BGH, judgment of December 9, 2014, Az .: X ZR 13/14 = BGH NJW-RR 2015, 621
- ↑ Andreas Wien, Commercial and Corporate Law , 2013, p. 100
- ↑ Manipulated online comments: Companies pay for positive product reviews. Spiegel Online, April 30, 2012
- ↑ Ernst Stahl / Georg Wittmann / Thomas Krabichler / Markus Breitschaft, E-Commerce-Leitfaden , 2012, p. 22 ff.
- ↑ Frankfurter Allgemeine of February 18, 2014, criminal proceedings for Teldafax bankruptcy postponed
