Creditor default

Creditor default / Gläubigerverzug

October 18, 2022

The concept of creditor default or also default of acceptance describes the situation where someone properly offers a service owed but can not fulfil his obligation because the other party does not accept the service. The service owed may consist, for example, in the delivery of goods or the provision of a service. The law calls the recipient of the service "creditor" and the obligor debtor". It stipulates that the creditor is "in default" if he does not accept the service offered to him in time, section 293 BGB. The effects of creditor default differ from those of debtor default. While the debtor's default constitutes a breach of duty that obliges him to compensate for the resulting damage, the default of acceptance is in principle an obligation. The debtor can not therefore sue for acceptance and the creditor does not make himself liable for damages. Nevertheless, from the creditor's point of view, the law links a number of disadvantages to the occurrence of default of acceptance:

According to section 300 (1) German Civil Code (BGB), the creditor is only responsible for intent and gross negligence during the default of acceptance. This means that if the creditor (slightly) negligently destroys the item owed during the delay, he no longer has to deliver - but the creditor still has to pay

According to section 304 BGB, the creditor can demand the additional expenditure he had to make for the unsuccessful offer and the preservation of the object. These can be, for example, transport or storage costs, or, if applicable, compensation for the work performed.

In addition, the creditor is privileged with regard to interest and benefits pursuant to §§ 301 f. BGB

Conditions of default of acceptance

Pursuant to section 294 BGB the debtor must actually be offered performance exactly as it is to be rendered. The creditor does not need to do anything other than "access and accept performance" (MüKoBGB/Ernst § 294 marginal no. 2). It is important to note that only proper performance can justify default of acceptance. The offer must therefore correspond to the respective obligation in terms of quality, type and quantity and must be made in the right place at the right time.

In certain cases, a verbal offer may be sufficient under section 295 BGB. This concerns, on the one hand, the case where the creditor has declared that he will not accept the offer, on the other hand, it is sufficient to request the debtor to cooperate if this is necessary to effect performance. However, the debtor must actually be in a position to effect performance.