Advance payment (law)

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In the case of mutual contracts, advance performance is understood to be the legal or contractual obligation to effect a performance before the contractually stipulated consideration . The person whose performance is due first has to pay in advance .


The mutual contract is characterized in that the mutual services are to be effected step by step against receipt of the consideration. The advance performance obligation is an exception to the step-by-step rule of Section 320 (1) BGB . An advance performance obligation cancels this step-by-step performance ( Section 322 (1) BGB) so that a contracting party who is obliged to perform in advance does not Can demand consideration step by step. In the case of many mutual contracts, it is assumed that the seller (contractor) who is obliged to provide material , service or work is liable to pay in advance to the buyer (client) who is liable for payment. Then the debt only becomes due when the seller (contractor) has fulfilled his contractual obligations. Advance performance obligations of this kind take into account the fact that strict train-by-train processing is often not possible. Therefore, in everyday practice, obligations in advance - if sometimes only for a few seconds - are the rule and the step-by-step performance according to Section 320 BGB is the exception. The delivery obligation from the purchase contract is an advance performance obligation, so that the due date of the purchase price cannot usually occur without the delivery of the seller.

Since most transactions cannot be processed simultaneously, the seller has to hand the sold goods over to the buyer before the buyer has paid the purchase price. The lack of simultaneity of processing is problematic because the contractually agreed consideration may not be received despite advance performance. This delivery risk is on the side of suppliers vorleistenden a trade credit , on the side of vorleistenden money debtor a credit . This unsecured delivery risk can be made in the full absence of the contract.


A distinction is made between the "permanent obligation to provide advance performance" and the "non-permanent obligation to advance payment".

  • In the case of the "permanent obligation to perform in advance", the party obliged to perform in advance can only demand the consideration to which it is entitled if it has fulfilled its obligation to provide advance performance itself. The due date of the consideration is therefore linked to the provision of the advance service. The debtor's performance cannot therefore become due until the counter-performance has been provided by the obligee ( § 284 BGB). If it is agreed that the purchase price should be due “four weeks after delivery of the goods”, this is a “constant obligation to perform in advance”. The contractual clauses “cash against invoice”, “cash against documents” or ordering by cash on delivery are “constant obligations in advance”.
  • In the case of the weaker “non-permanent advance performance obligation”, the consideration becomes due regardless of the provision of the advance performance on a specific date , but this date is later than the date of the advance performance. Advance and consideration are therefore due independently of one another due to the date. If the due date of the advance payment is determined according to the calendar , this advance payment obligation ends with the earlier due date of the counterclaim. A “non-permanent obligation to advance payment” exists, for example, if an artist undertakes to perform in the New Year's concert on January 1st and the organizer has to pay the fee before the concert begins. These types are quite common in service and work contracts . As long as the creditor does not effect the performance owed by him, is the debtor from the due date of their own performance, the defense of breach of contract (§ 320 para. 1 sentence 1 BGB).

Statutory advance payment obligations

Advance performance obligations can result from law or contract. For some types of contract, the law expressly regulates the contractual partner's obligation to perform in advance. This includes § 579 BGB (land or ship rental company), § 614 BGB (persons obliged to serve under employment relationships ), § 641 Paragraphs 1 and 2 BGB ( entrepreneurs for work contracts) or § 699 BGB ( remunerated custodians ). Employees must first perform their work before the employer pays wages or salaries for it. In the case of a work contract, the contractor has to pay in advance, as his remuneration is only due after the work has been performed. The regulation of § 16 VOB / B is also based on the contractor's obligation to perform in advance for work contracts. According to the prevailing opinion , there is no advance payment obligation for the apartment tenant from § 556b (1) BGB ; Rather, it is merely a matter of a due date regulation, because the landlord has to pay from the first day of a period.

Advance payment clauses

Advance performance clauses are understood to be clauses through which the customer is requested to perform an advance performance in the General Terms and Conditions , although the statutory regulation according to Section 320 BGB does not provide for this. The principle of performance step by step is one of the essential basic ideas of the legal regulation ( § 307 Paragraph 2 No. 1 BGB) because it guarantees equal security for both contracting parties. The obligation to provide advance performance imposed on the customer removes the pressure of the objection of the non-fulfilled contract (§ 320 BGB) for the enforcement of his claim to fulfillment in accordance with the contract and the risk of the inability of his contractual partner to perform. Such clauses are only effective according to § 305c Paragraph 2 BGB if there is an objective reason for them and there are no overriding interests of the customer. The cited judgment concerned a case in which the customer had to make a “final payment before delivery”, thereby depriving him of the right to examine the goods beforehand. The supplier thus benefited from the entire purchase price and no longer bore the typical risk of a loss of money. On the other hand, the customer is deprived of the right to refuse to pay the purchase price on receipt of defective goods, which puts him at an unreasonable disadvantage. "Delivery against cash on delivery" is also an ineffective advance performance clause because it deprives the customer of any possibility of offsetting.

Advance payment risk at credit institutions

Since the advance payment risk represents a particularly high business risk at banks , banking transactions with an advance payment nature are to be treated separately under banking supervisory law. According to Art. 379 Capital Adequacy Ordinance (CRR), a bank is exposed to a wholesale risk if it has paid for financial instruments before it has received delivery or vice versa, or in the case of cross-border transactions if at least one day has passed since payment or delivery. This delivery risk ultimately involves a bankruptcy danger, of each of the counterparty is subject (see Herstatt risk ).

Legal consequences

If there is a legal or contractually effective advance performance obligation, the other contracting party can wait with its consideration until the advance performance has been provided. However, if the person obliged to perform in advance is uncertain, the obligation to perform in advance can become unreasonable. However, the party entitled to advance performance can rely on the fact that the party subject to advance performance has accepted the risks identified when the contract was concluded and therefore does not later question the performance of the contract. The inability of the debtor liable for payment must be the cause of the risk to the advance payment. In order to eliminate the risk of advance performance, the law offers a right to refuse performance until a security deposit (Section 232 ff. BGB) or the consideration has been provided ( Section 321 (1) BGB). It is the objection due to a deterioration in the wholesale risk (objection of uncertainty ). There is a special regulation for the loan agreement . Occurs after conclusion of a significant deterioration in the financial circumstances of the borrower and is jeopardizing the repayment of the loan at risk, who lender before paying a special right to § 490 para. 1 BGB.

Individual evidence

  1. a b Ulrich Huber : Performance Disruptions , 1999, p. 390 f.
  2. Gisela Rühl, Statute and Efficiency: Economic Foundations of International Private Law , 2011, p. 37.
  3. Gisela Rühl, Statute and Efficiency: Economic Foundations of International Private Law , 2011, p. 39.
  4. Ulrich Huber, Performance Disorders , 1999, p. 367.
  5. Roland Schwarze, The right of performance disruptions , 2008, p. 137.
  6. BGH NJW 1986, 1164
  7. Richard Riedl / Martin Rusam / Johann Kuffer, Handkommentar zur VOB , 2008, p. 1322.
  8. Peter Huber / Ivo Bach , Exam Repetitorium Schuldrecht BT 1 , Volume 1, 2013, p. 184.
  9. BGH, judgment of March 10, 1999, Az .: VIII ZR 204/98 ( Memento of the original of January 21, 2004 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. @1@ 2Template: Webachiv / IABot /
  10. ^ BGH, judgment of July 8, 1998, VIII ZR 1/98
  11. Roland Schwarze, The right of performance disruptions , 2008, p. 139.