Payment guarantee
The payment guarantee (or payment guarantee ; English payment bond , French garantie de paiement ) secures the claim of the seller or manufacturer for payment of the purchase price or other services against the buyer under a contract .
General
Especially in the international credit transactions a variety comes from warranties / guarantees before that serve mutual securing obligations under a contract. A payment guarantee ensures the seller or manufacturer compliance with its terms of payment by the buyer, mostly those contracts without due dates schedule for payment. The payment guarantee secures the seller / manufacturer against the buyer's payment risk. It often occurs in foreign trade and foreign trade finance when exporters want to protect themselves from a possible bad debt loss because the importer does not pay, does not pay in full or is late in spite of the delivery received . The payment guarantee is also available as a replacement for the promise to pay in a letter of credit , but does not offer the same level of security as the letter of credit. In forfaiting , payment guarantees are intended to protect against transfer stop , conversion or country risk.
Legal issues
The payment guarantee / payment guarantee is intended to secure the financial debts of a debtor resulting from payment obligations from a legal contractual obligation ( Section 362 (1) BGB ). The creditworthiness of a guarantor / surety should give the obligee the opportunity to fall back on them if the debtor cannot or can only partially meet his payment obligations. The payment guarantee / payment guarantee is a sub-form of the guarantee or surety. The latter is regulated in § 765 ff. BGB, which applies to the payment guarantee. The guarantee replaces the surety in international credit transactions, but is not regulated in the BGB. The BGB provisions on the guarantee cannot be applied analogously to the guarantee; rather, the law of obligations applies analogously .
Credit institutions issue payment guarantees within the framework of the guarantee credit , insurance within the framework of the deposit insurance . The guarantee credit is banking within the meaning of Section 1 (1) No. 8 KWG , while the deposit insurance is insurance for the account of a third party in accordance with Section 43 VVG . According to the legal definition of Section 43 (1) VVG, the policyholder can conclude an insurance contract in his own name for someone else. The “other” is the beneficiary from the surety / guarantee, to whom the rights from the insurance contract are entitled ( Section 44 (1) VVG) but are overlaid by the legal relationship from the guarantee / surety.
Legal consequences
The guarantee case / surety case occurs in the case of payment guarantees / payment guarantees if the main debtor from the guaranteed / surety contract does not or not completely fulfill the main performance obligation owed by him . Then the bank or the insurance company from the guarantee / surety is obliged to make payment. This payment is in the guarantee under § 774 para. 1 BGB the demand of the creditor against the principal debtor to the guarantor of law over ( subrogation ), in which a guarantee is indemnity from § 670 BGB basis.
Payment guarantees with electronic cash
For card payments through electronic payment means Girocard , debit card or credit card , the card-issuing bank takes over the dealer / service provider a payment guarantee by which the payment obligation of the card-paying customer to the dealer / service should be guaranteed. Payment by the cardholder is made with a payment guarantee at a POS terminal and identification using the PIN . This guarantees the dealer / seller - if submitted in time - payment by the buyer.
The general terms and conditions of the card company stipulate that the service receipts formally duly filled out by the contracting company (merchant / seller) with the addition "The cardholder's signature is on the service receipt " ( English signature on file ) triggers the card company's payment obligation. According to the prevailing opinion , this obligation to pay is not a guarantee, but an abstract promise of debt according to § 780 BGB. The Federal Court of Justice (BGH) also assumes that the cardholder signs the service receipt as an abstract promise of debt. Unlike the guarantor, the card company should not only have subsidiary liability, but should enter into its own direct payment obligation. In addition, the card company only offers payment services in accordance with Section 1 Paragraph 1 Sentence 2 No. 5 ZAG . The credit card payment is made on account of performance ( Section 364 (2) BGB). This payment obligation on the part of the card company only arises if the merchant uses the POS terminal to create proper service receipts. This regulation prescribes appropriate documentation of the transactions carried out, which is required in particular to deal with any complaints from a cardholder. The specification “signature on file” is always a necessary prerequisite for the credit card company's payment obligation in the face-to-face procedure ; The payment obligation arises in the mail order procedure even without the note “signature on file” on the service receipts , if orders are sent by e-mail / internet and the contractor does not have the cardholder's signatures.
International
In international credit transactions, the payment guarantee is partly known, but the payment guarantee is usually preferred.
Individual evidence
- ^ Andreas Schlüter, Management and Consulting Contracts , 1987, p. 180
- ↑ Alexander W. Oehlmann, Practice of Foreign Guarantees , 1993, p. 37 f.
- ^ Georg Walldorf (ed.), Gabler Lexikon Auslandshaben , 2000, p. 599
- ↑ Alexander W. Oehlmann, Practice of Foreign Guarantees , 1993, p. 37
- ↑ Alexander W. Oehlmann, Practice of Foreign Guarantees , 1993, p. 38
- ^ Eggert Winter (ed.), Gabler Lexikon Recht in der Wirtschaft , 1998, p. 1105
- ↑ Friedrich Graf von Westphalen / Brigitta Zöchling-Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113
- ↑ Wolfgang Grill / Ludwig Gramlich / Roland Eller (eds.), Gabler Bank Lexicon: Bank, Börse, Financing , Volume 1, 1996, p. 1728
- ↑ Julia Haas, Promise and Acknowledgment of Debt , 2011, p. 173
- ^ BGH, judgment of April 16, 2002, Az .: XI ZR 420/01 = BGHZ 152, 75
- ↑ BGH WM 2004, 1130, 1131
- ↑ BGH WM 2004, 1130, 1132
- ^ BGH, judgment of July 12, 2005, Az .: XI ZR 412/04 = BGHZ 157, 256
