A current account ( Italian: conto = Invoice, corrente = ongoing) is the traditional common form of mutual settlement of claims between creditors and debtors, which aims at mutual adjustments of assets and liabilities by finding a balance.
- 3.1 overdrafts
- 3.2 suppliers
Under German commercial law ( § 355 HGB - in Austria similarly applies 355Vorlage §: § / Maintenance / RIS search UGB ) at least one party merchant needs to be at a Kontokorrentbeziehung. Furthermore, the balance of the current account must be at least once be detected per year ( in the financial statements ). While § 355 German Commercial Code defines the current account and released as special legal consequence of compound interest prohibition of § 248 BGB, § 356 HGB in the fate of the receivables and guarantees the set to the current account receivables and in § 357 HGB is determined the seizure of the Kontokorrentguthabens closer. The provisions of the German Commercial Code with respect to the current account, however, are incomplete. These gaps have been largely closed by legal literature and case law.
According to § 355 paragraph 1 HGB there is a current account, if
- A business relationship between the parties is,
- At least one party is a merchant,
- A current account agreement was reached, after which Benefits and entitlements are due and payable,
- They will be charged at regular intervals to each other and
- The resulting excess is detected.
The current account is necessarily composed of two components of the contract.
In the Kontokorrentvertrag there is a mutual agreement. A party takes over the duties kontokorrentrechtlichen just in case that is committed to the other party. The Kontokorrentvertrag regulates the immediate contents of the business relationship and clarifies, among other things, the question whether a balance is to be compensated for any or transferred to the account of the new period. He determined that the Parties shall cooperate in the identification and recognition of the balance, and defining a plurality of secondary obligations laid, such as the duty to provide information on account turnover.
Current account agreement
The current account agreement determines the consumption mode and makes the permanent legal relationship of the parties until a current account in the legal sense of § 355 HGB. Missing about a checking account, the current account agreement, there may be some unfinished business, but never a current account. To be distinguished from the current account in the legal sense, the current account within the meaning of § 355 HGB is. Under the former, the legal relationship between the parties is to be understood, which is necessary for the reasoning of each open account. In the current account within the meaning of § 355 HGB, however, is the legal definition of the law for the application of § § 355 et seq. The legislature has the right current account designated in § 355 paragraph 1 HGB and defined its requirements. Only if these are met, § § 355 et seq can be applied.
The law is based on an interest rate of the balance; However, it is not mandatory. If a return is provided, then the determination of the balance is relevant not only for the determination of mutual claims, but also for the calculation of interest. To this end, the parties have to agree on the amount and method of calculation of interest. The calculation of interest will be based on an interest scale. To this end, set in the current account credits and debits from the booking date ( value date ) to bear interest to the accounts and the interest component of the balance. In § 355 paragraph 1 HGB compound interest be allowed, because the balance of interest can be calculated compound interest are otherwise generally prohibited by § 248 para 1 BGB " including those contained in the discount rates. "; only exception to the prohibition of compound interest are capitalized interest on deposits with credit institutions ( § 248 para 2 BGB).
Nature and characteristics
In the current account, a merchant is linked to another merchant or a non-merchant in constant business relationship may result from the mutual claims and liabilities. Instead of each individual receivable or payable at the maturity of each isolated fulfill these demands or liabilities are offset ongoing basis. Economically, therefore, is the current account primarily the simplification and standardization of payments. On the one hand this way a variety of payment transactions is reduced to the settlement of a single excess demand, on the other hand, all claims will be offset against each other regardless of their legal fate. In addition, the current account comes to a backup function. For every Kontokorrentpartner must rely on his claims that due to the ongoing business relationship are constantly charged with counter- claims of the other side. Thereby, the risk of non-compliance is limited. By setting the individual claims in a current account will also ensure that third party access remains largely denied because the current account agreement prevents the claims can be independently attached or the courts. A lending function is the current account, however, not the case. One of granted credit facilities such as an overdraft or credit facility in the bank account is based, not on a regular current account agreement, but on one of them fully independent credit agreement.
Current account in business practice
Most common form is the checking account from non-banks with a bank for the settlement of non-cash (inter) national payment transactions, including bank overdrafts. In addition, the current account also comes under banks ( inter) national inter -bank payments are frequent and nostro vostro account is called respectively. The current account maintained by the Clearinghouse (central banks or private companies) and clearing participants ( mostly banks ) is another method for handling the non-cash (inter) national payment transactions. The so-called Firmenkontokorrent comes between ( inter) nationally before manufacturing companies with each other in an enduring business relationship and settle their mutual claims and liabilities using a current account cashless.
The checking account is a specific form of the current account a combination of a current account and a current account agreement. In paragraph 7, No. 1 Copyright savings is clear that current accounts represent a current account within the meaning of § § 355 et seq. Also the checking account shall be - composed of a Kontokorrentvertrag and a current account agreement within the meaning of § 355 HGB - on the basis of a current contract. It is now recognized that the current account agreement tacitly comes about because the customer is aware of conclusion of the contract that the bank will settle the mutual claims and above may make daily statements and accounts. The peculiarity of the Bankkontokorrents - compared to purely commercial law current account of § 355 HGB - is that the debits and credits on the account will be charged constantly with each other and so a balance is determined - the so-called daily balance: either the debit balance of a credit balance the others or vice versa. The current account agreement provides the framework for the current account and is made implicitly by constant practice, taking into account the presumed intention of the parties when opening an account. This means that current contract and current account agreement represent a composite contract, thus connecting the parties legally separable agreements such that they form a unit for the legal assessment.
A current account is also common between mutual suppliers or service providers, where lasting relationships are made that lead to a variety of mutual claims. These claims do not then need to be paid separately in each case when due, but can be set to a current account.
The legal nature of the current account to be set in individual claims does not change, but its isolated assertion is no longer possible. Accordingly, they can not individually be more subject to assignment, pledge, attachment or offset account. The limitation period for claims is inhibited 205 BGB by analogy with §. If however a claim sued independently, so this is counteracted by the objection of Kontokorrentbindung. With the determined by offsetting balance, which must be recognized by a legal transaction, creates a separate claim, which can be independently assigned, pledged or attached.
The balance acknowledgment is a legal transaction in which one party at the end of a billing period is carried out ( the receivables are netted ) offering and the balance calculated for adoption. According to the prevailing opinion today represents the balance acknowledgment of an abstract acknowledgment of debt within the meaning of § 781 BGB represents the regular release of the balance will also serve as a request for completion of an abstract acknowledgment of debt agreement on the reported balance. This request is accepted by the other Party by the declaration of recognition of the balance. Since the balance acknowledgment in accordance with § 780 BGB, § 350 HGB is not bound form, the consent may also be implied. With the completion of this new contract void the previously existing claims by way of novation, and in its place the abstract balance claim, which is HGB bear interest based on express arrangement of § 355 paragraph 1. He is both transferable, pledged and subject to attachment.