Direct debit authorizations can be deemed insolvency-proof (insolvenzfest)
The Federal Court of Justice (BGH) has established consistent legal principles on the insolvency-proofing of direct debit authorizations. Pursuant to the judgment, the credit services sector may – on the one hand - stipulate provisions into its General Terms and Conditions similar to the SEPA-Direct Debit rules (Single Euro Payments Area) which came into effect on November 2009.
According to these SEPA-Direct Debit rules, the payer who authorizes the creditor to collect its debts may simultaneously enable its bank to effect such payment. In this case the booking of the exposure on the debtor’s account will be deemed originally valid. Thus, an insolvency administrator cannot object to the debit booking.
As long as the new SEPA rules are not adopted by banks, with respect to periodical payments, i.e. payments resulting from continuing obligations or ongoing business relations, under certain circumstances conclusive confirmation of the debit booking may be assumed. According to the BGH, if the debtor (i) does not object to the withdrawal within an appropriate examination period, (ii) he has confirmed a former collection and (iii) if the account is kept in enterprising business operations, not objecting can be deemed an implied approval of the payment. Again, the debit booking cannot be appealed by an insolvency administrator.
The BGH has departed from its former rather strict approval theory (Genehmigungstheorie) according to which the fulfilment of a creditor’s receivable took place only after the debtor confirmed the debit booking on his account.
(Federal Court of Justice, Decision dated 20 July 2010 (XI ZR 236/07))