Dunning (process)
Germany
A reminder, also referred to as a payment reminder, is the clear and specific request of the creditor to the debtor to provide the due performance. The reminder can (in addition to the existence of a claim due and non- performance by the debtor ) requirement for the default of the debtor (§ 286 BGB). Delay does not occur as long as the debtor is not responsible for non- performance, but for which he is obliged to provide proof.
If a contractual agreement with the debtor for the performance of a time according to the calendar is determined or can be calculated by the calendar after a previous event (eg " payable at 01:01:01 ", " payable in calendar week 30 ", " 14 payable. days after receipt of invoice " ), is the admonition not required ( § 286 para 2 BGB). Reminder is also not required if the debtor has expressly agreed to the short-term performance, but this commitment does not comply with (so-called self- reminder ), or if the debtor has the power seriously and finally (for example: " From me you get no money! ").
The debtor of a claim for payment is - without that it would have to be reminded - no later than 30 days after the due date and receipt of an invoice in arrears. If the debtor is the consumer ( § 13 BGB), he must have been especially these consequences in the bill. Interest shall be calculated in principle not the first reminder.
The admonition is not bound to any form, for reasons of evidence probably will want to be in writing. The corresponding document is called a dunning letter. The written warning must be clearly identified the debtor as a person, company or association. The warning must be certain and clear call to the debtor included to fulfill its contractual obligation ( eg, payment, delivery, etc.). The word " warning " is does not pop up, so that it is, for example, even with a so named "memory" a reminder, if only they meet the criteria stated in advance. In order to have an indication of the receipt of the reminder, service by registered letter with acknowledgment of receipt may be necessary. However, no one is obligated to pick one stored at the post office registered mail.
If the debtor is only formed when the request for payment, it must ensure that the creditor about costs, such as fees of an attorney or a collection agency, do not wear. It was only after the costs of further requests for payment or other measures he has to replace than delay damage to the creditor.
The effects of a reminder also be achieved by collecting the power suit or service of the order to pay for debt payment.
The reminder as such does not affect the expiry of the limitation period of the claim. Only when the debtor acknowledges the claim, such as by asking it to defer payment, partial or interest payment, the statute of limitations begins anew ( § 212 BGB).
In a reminder it is not a declaration of intent, as the legal consequences by law and therefore without express will of the creditor to enter. It is rather a business- like action. However, the principles contained in the Civil Code on declarations (§ § 104 ff ) are due to the great similarity nevertheless apply.
Costs
If the debtor is in default, he has to bear the additional collection expenses. According to case law, there is an upper limit thereof. This limit is in the German case, depending on the district of the respective Higher Regional Court ( OLG) determined differently.
A fixed by Terms flat rate of 15 € per reminder is in any case considered without proof of special cost -increasing factors for improper and ineffective. The Federal meant: "The [ ... ] amount of damage fee of 30 DM per reminder [ ..] is unusually high so is in the jurisdiction of the Courts of Appeal already dispute as to whether a flat rate of $ 5 per reminder is still appropriate. ( negative OLG Karlsruhe ZIP 1985, 603/607; OLG Frankfurt WM 1985, 938; OLG Hamm NJW -RR 1992, 242/243; affirmative OLG Dusseldorf World Cup 1985, 17 /18; OLG Köln WM, 1987, 1548/1550 ). "
The Association of Energy Consumers wrote on September 4, 2012 at a judgment of the Higher Regional Court of Munich: " The Higher Regional Court of Munich has dealt with the overdue fines of Stadtwerke München in a judgment dated July 28, 2011 (29 U 634/11 ). Their decisions on the collection expenses of five euro are much too high. For general and administrative expenses for personnel and computer may not be included. After the calculation of the Court only 1.20 euros for postage, material and pressure would have been recoverable. "
Switzerland
Is a debt due, the debtor is set by reminder of the creditor in default. Has been for the fulfillment of a specific expiration date agreed, or if a result of such a reserved and duly made termination, the party is already at the end of this day in default (Art. 102 CO).
The order for payment in debt collection and bankruptcy law is to be regarded from a substantive viewpoint as a reminder.
A warning is not required for the initiation of a debt.