Last Updated on June 27, 2021 by LawEuro
German Civil Code (BGB) German law
Chapter 3
Provision and use of payment services
Subchapter 1
Authorisation of payment transactions; payment authentication instruments
Section 675j
Consent and withdrawal of consent
(1) A payment transaction is only effective vis-à-vis the payer if he has consented to it (authorisation). Consent may be granted either as approval or, if agreed in advance between the payer and his payment service provider, as subsequent approval. Modalities of granting consent are to be agreed between the payer and his payment service provider. In particular, it may be agreed that consent may be granted using a specific payment authentication instrument.
(2) Consent may be withdrawn by the payer by making a declaration towards the payment service provider as long as the payment order is revocable (section 675p). Consent to execute a series of payment transactions may also be withdrawn with the effect that any future payment transaction is to be considered as unauthorised.
Section 675k
Restriction on use
(1) In cases in which consent is granted through a payment authentication instrument, the payer and the payment service provider may agree maximum amounts for the use of this payment authentication instrument.
(2) The payer and the payment service provider may agree that the payment service provider has the right to block a payment authentication instrument if
1. factual reasons in connection with the security of the payment authentication instrument justify this,
2. there is suspicion of non-authorised or of fraudulent use of the payment authentication instrument, or
3. in case of a payment authentication instrument granting credit, a considerably increased risk exists that the payer is unable to meet his obligation to pay.
In this case, the payment service provider is obliged to notify the payer of the blocking of the payment authentication instrument if possible before, but at the latest promptly after the block is established. The reasons for the block are to be stated in the notification. It is not necessary to state reasons insofar as the payment service provider would breach statutory obligations thereby. The payment service provider is obliged to unblock the payment authentication instrument or to replace it with a new payment authentication instrument if the reasons for the block no longer apply. The payment service user is to be informed promptly of the removal of the block.
Section 675l
Obligations of the payer with regard to payment authentication instruments
On receipt of a payment authentication instrument, the payer is obliged to immediately take all reasonable precautions to protect the personalised security features against unauthorised access. He must promptly notify the payment service provider or an agency named by the latter of the loss, theft, abusive use or other unauthorised use of a payment authentication instrument after he has become aware thereof.
Section 675m
Obligations of the payment service provider with regard to payment authentication instruments; risk of dispatch
(1) The payment service provider who issues a payment authentication instrument is obliged
1. to ensure, regardless of the obligations incumbent on the payment service user under section 675l, that the personalised security features of the payment authentication instrument are only accessible to the person authorised to use them,
2. to refrain from unsolicited dispatch of payment authentication instruments to the payment service user unless a payment authentication instrument already issued to the payment service user must be replaced,
3. to ensure that the payment service user is able by suitable means at any time to make a notification as provided under section 675l sentence 2 or to demand the removal of the block pursuant to section 675k (2) sentence 5, and
4. to prevent any use of the payment authentication instrument as soon as a notification has been made as provided pursuant to section 675l sentence 2.
If the payment service user has reported the loss, theft, abusive use or other unauthorised use of a payment authentication instrument, his payment service provider must provide to him on request until at least 18 months after this report the means for the payment service user to prove that a report took place.
(2) The risk of dispatch of a payment authentication instrument and of the dispatch of personalised security features of the payment authentication instrument to the payer is borne by the payment service provider.
Subchapter 2
Execution of payment transactions
Section 675n
Receipt of payment orders
(1) A payment order becomes effective when it is received by the payer’s payment service provider. If the time of receipt does not fall on a business day of the payer’s payment service provider, the payment order is deemed to have been received on the following business day. The payment service provider may determine that payment orders which are received after a certain time close to the end of the business day are deemed for the purposes of section 675s (1) to have arrived on the following business day. A business day is each day on which the payment service provider involved in executing a payment transaction maintains the business operations required for executing payment transactions.
(2) If the payment service user who initiates a payment transaction, or via whom a payment transaction is initiated, and his payment service provider, agree that the execution of the payment order is to commence on a specific date or at the end of a specific period or on the day on which the payer has made available to the payment service provider the amount of money required for its execution, the agreed date is deemed to apply for the purposes of section 675s (1) as the time of receipt. If the agreed date does not fall on a business day of the payer’s payment service provider, the business day following this is deemed to be the time of receipt for the purposes of section 675s (1).
Section 675o
Refusal of payment orders
(1) If the payment service provider refuses to execute a payment order, he is obliged to inform the payment service user of this promptly, but in any case within the periods set out in section 675s (1). Wherever possible, the notification should state the reasons for the refusal, as well as the possibilities as to how errors which led to refusal can be corrected. Reasons do not need to be stated insofar as they would violate other legal provisions. The payment service provider may agree with the payment service user in the framework contract on payment services a charge for informing of a justified refusal.
(2) The payer’s payment service provider is not entitled to refuse to execute an authorised payment order if the execution conditions set out in the framework contract on payment services are met and execution does not violate any other legal provisions.
(3) For the purposes of sections 675s, 675y and 675z, a payment order the execution of which was justifiably rejected is deemed not to have been received.
Section 675p
Irrevocability of a payment order
(1) The payment service user may no longer revoke a payment order on proviso of subsections (2) to (4) after it has been received by the payer’s payment service provider.
(2) If the payment transaction was initiated by or through the payee, the payer may no longer revoke the payment order after he has transmitted the payment order or his consent to the execution of the payment transaction to the payee. In the case of a direct debit, the payer may however revoke the payment order without prejudice to his rights under section 675x until the end of the business day prior to the agreed due date.
(3) If a specific date has been agreed between the payment service user and his payment service provider for the execution of a payment order (section 675n (2)), the payment service user may revoke the payment order until the end of the business day prior to the agreed date.
(4) The payment order may only be revoked after the deadlines named in subsections (1) to (3) if the payment service user and his payment service provider have so agreed. In cases falling under subsection (2), additionally, the consent of the payee to the revocation of the payment order is required. The payment service provider may agree with the payment service user in the framework contract on payment services a charge for processing such revocation.
(5) Participants in payment transaction systems may no longer revoke orders to the credit of another participant from the time determined in the rules of the system.
Section 675q
Charges for payment transactions
(1) The payer’s payment service provider, as well as any intermediary agencies involved in the payment transaction, are obliged to transfer the amount which is the subject matter of the payment transaction (payment amount), without any reduction, to the payee’s payment service provider.
(2) The payee’s payment service provider may only deduct charges to which he is entitled prior to crediting the amount from the amount transferred if this was agreed with the payee. In this case, the full amount of the payment transaction and the charges are to be shown separately for the payee in the information pursuant to Article 248 sections 8 and 15 of the Introductory Act to the German Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
(3) Where a payment transaction does not involve any currency conversion, the payee and payer each pay the charges levied by their respective payment service provider.
Section 675r
Execution of a payment transaction using unique identifiers
(1) The payment service providers involved are entitled to execute a payment transaction exclusively on the basis of the unique identifier stated by the payment service user. If a payment order is executed in agreement with this unique identifier, it is deemed to have been properly executed with regard to the payee designated by the unique identifier.
(2) A unique identifier is a sequence of letters, numbers or symbols specified to the payment service user by the payment service provider and to be provided by the payment service user to identify unambiguously the other payment service user and/or his payment account for a payment transaction.
(3) If a unique identifier stated by the payer cannot be recognisably attributed by the payer’s payment service provider to any payee or to any payment account, the service provider is obliged to inform the payer of this promptly, and where appropriate to return the payment amount to him.
Section 675s
Execution deadline for payment transactions
(1) The payer’s payment service provider is obliged to ensure that the payment amount is received at the latest at the end of the business day following the time of receipt of the payment order by the payee’s payment service provider; until 1 January 2012, a payer and his payment service provider may agree a time-limit of up to three business days. A payer and his payment service provider may agree a maximum time-limit of four business days for payment transactions within the European Economic Area which do not take place in euros. The time-limits under sentence 1 may be extended by a further business day for payment transactions initiated in paper form.
(2) In case of a payment transaction initiated by or through the payee, the payee’s payment service provider is obliged to transmit the payment order to the payer’s payment service provider within the time-limits agreed between the payee and his payment service provider. In the case of a direct debit, the payment order is to be transmitted in good time so that it can be debited on the due date notified by the payee.
Section 675t
Value date and availability of funds
(1) The payee’s payment service provider is obliged to make the payment amount available to the payee promptly after it has been credited to the account of the payment service provider. Insofar as the payment amount is to be credited to a payment account of the payee, crediting, even if it takes place subsequently, is to be carried out such that the time which the payment service provider uses as a basis for the calculation of the interest on credit or debit of an amount on a payment account (value date) is at the latest the business day on which the payment amount was credited to the account of the payee’s payment service provider. Sentence 1 also applies if the payee does not hold a payment account.
(2) If a consumer places cash on a payment account with a payment service provider in the currency of the payment account concerned, this payment service provider must ensure that the amount is made available and credited to the payee promptly after the time of acceptance. If the payment service user is not a consumer, the amount of money must be made available and credited to the payee at the latest on the business day following acceptance.
(3) A debit to the payer’s payment account is to be effected such that the value date is at the earliest the time when this payment account is debited with the payment amount.
Subchapter 3
Liability
Section 675u
Liability of the payment service provider for unauthorised payment transactions
In the case of an unauthorised payment transaction, the payer’s payment service provider has no claim to reimbursement of his expenditure vis-à-vis the latter. He is obliged to reimburse the payment amount to the payer promptly and, insofar as the amount has been debited from a payment account, to restore this payment account back to the balance which it would have had without being debited with the unauthorised payment transaction.
Section 675v
Liability of the payer in case of abusive use of a payment authentication instrument
(1) If unauthorised payment transactions are based on the use of a lost, stolen or otherwise missing payment authentication instrument, the payer’s payment service provider may demand from the latter compensation for the loss thus incurred up to an amount of 150 euros. This also applies if the damage was caused as the result of other abusive use of a payment authentication instrument and the payer did not securely store the personalised security features.
(2) The payer is obliged to provide compensation to his payment service provider with regard to the entire damage caused as the result of an unauthorised payment transaction if he has facilitated it with fraudulent intent or caused it by means of an intentional or grossly negligent violation
1. of one or several obligations under section 675l, or
2. of one or several agreed conditions for the issuance and use of the payment authentication instrument.
(3) By way of derogation from subsections (1) and (2), the payer is not obliged to provide compensation with regard to damage emerging from the use of a payment authentication instrument after a report has been made pursuant to section 675l sentence 2. The payer is also not obliged to provide compensation with regard to loss within the meaning of subsection (1) if the payment service provider failed to comply with his obligation in accordance with section 675m (1) no. 3. Sentences 1 and 2 are not applicable if the payer acted with fraudulent intent.
Section 675w
Proof of authentication
If the authorisation of a payment transaction which has been carried out is disputed, the payment service provider must prove that authentication took place and that the payment transaction was properly recorded, posted and not impaired by a malfunction. Authentication is deemed to have taken place if the payment service provider has verified the use of a specific payment authentication instrument, including his personalised security features, with the aid of a procedure. If the payment transaction was initiated using a payment authentication instrument, the recording of the use of the payment authentication instrument, including authentication, by the payment service provider is not necessarily sufficient by itself in order to prove that the payer
1. authorised the payment transaction,
2. acted with fraudulent intent,
3. violated one or several obligations pursuant to 675l, or
4. intentionally or with gross negligence violated one or several conditions for the issuance and use of the payment authentication instrument.
Section 675x
Refund claim in case of an authorised payment transaction initiated by or through the payee
(1) The payer has a right vis-à-vis his payment service provider to the refund of a payment amount which has been debited which is based on an authorised payment transaction initiated by or through the payee if
1. the precise amount was not stated on the authorisation, and
2. the payment amount exceeds the amount which the payer could have anticipated in line with his previous expenditure conduct, the conditions of the framework contract on payment services and the respective circumstances of the individual case; reasons connected with any currency exchange are not to be considered if the reference exchange rate agreed between the parties was used as a basis.
The payer is obliged on request by his payment service provider to explain the factual circumstances from which he derives his refund demand.
(2) In the case of direct debits, the payer and his payment service provider may agree that the payer also has a right to a refund vis-à-vis his payment service provider if the preconditions for a refund under subsection (1) are not met.
(3) The payer can agree with his payment service provider that he does not have a right to a refund if he has granted his consent to the execution of the payment transaction directly to his payment service provider and, where agreed, he was informed of the coming payment transaction at least four weeks prior to the due date by the payment service provider or by the payee.
(4) A claim to a refund on the part of the payer is ruled out if he does not assert it vis-à-vis his payment service provider within eight weeks from the time of the debit of the payment amount in question.
(5) The payment service provider is obliged within ten business days after receipt of a refund demand to either refund the full amount of the payment transaction or to inform the payer of the reasons for the refusal to provide a refund. In the event of a refusal, the payment service provider must indicate the possibility to complain under section 28 of the Act on Supervision of Payment Services [Zahlungsdiensteaufsichtsgesetz] and the possibility to call on an arbitration agency under section 14 of the Act on Prohibitory Injunctions [Unterlassungsklagengesetz]. The right of the payment service provider to refuse a refund claimed within the time-limit under subsection (4) does not cover cases under subsection (2).
(6) Subsection (1) is not applicable to direct debits as soon as they have been directly authorised by consent of the payer vis-à-vis his payment service provider.
Section 675y
Liability of the payment service provider in case of non-execution or defective execution of a payment order; obligation to make enquiries
(1) If a payment transaction is initiated by the payer, the latter may demand from his payment service provider in the event of non-execution or of erroneous execution of the payment order the prompt and unreduced refund of the payment amount. If the amount was debited from a payment account of the payer, this payment account is to be restored to the balance which it would have had without the erroneously executed payment transaction. Insofar as charges were deducted from the payment amount contrary to section 675q (1), the payer’s payment service provider must promptly transfer the deducted amount to the payee. If the payer’s payment service provider proves that the payment amount was received in good time and without deductions by the payee’s payment service provider, liability under this subsection ceases to apply.
(2) If a payment transaction is initiated by or through the payee, the latter may demand in the event of non-execution or of erroneous execution of the payment order that his payment service provider transfers this payment order promptly, where necessary once more, to the payer’s payment service provider. If the payee’s payment service provider proves that he has met the obligations incumbent on him in implementing the payment transaction, the payer’s payment service provider must promptly refund to the payer where necessary the payment amount without deductions under subsection (1) sentences 1 and 2. Insofar as charges were deducted from the payment amount contrary to section 675q (1) and (2), the payee’s payment service provider must make available the deducted amount to the payee promptly.
(3) Claims of the payment service user against his payment service provider under subsection (1) sentences 1 and 2, as well as subsection (2) sentence 2, are deemed not to exist insofar as the payment order was implemented in concordance with the erroneous unique identifier stated by the payment service user. In this case, the payer may however demand from his payment service provider that the latter does his utmost to recover the payment amount. The payment service provider may agree a charge with the payment service user in the framework contract on payment services for this recovery.
(4) A payment service user may demand from his payment service provider over and above the claims under subsections (1) and (2) the refund of the charges and interest which the payment service provider invoiced to him in connection with the non-execution or erroneous execution of the payment transaction or debited from his payment account.
(5) If a payment order was not implemented, or if it was implemented erroneously, the payment service provider of the payment service user who initiated a payment transaction, or through whom a payment transaction was initiated, at the request of his payment service user, must subsequently trace the payment transaction and inform his payment service user of the outcome.
Section 675z
Other claims in case of non-execution or erroneous execution of a payment order or an unauthorised payment transaction
Sections 675u and 675y are final with regard to the claims of a payment service user regulated therein. The liability of a payment service provider towards his payment service user for loss caused because of non-execution or erroneous execution of a payment order which is not already covered by section 675y may be restricted to 12,500 euros; this does not apply to intent and gross negligence, to lost interest and to risks which the payment service provider has particularly taken on. Payment service providers must assume blame here that is attributed to an intermediary agency as their own blame unless the main cause lies with an intermediary agency which was determined by the payment service user. In cases falling under sentence 3 clause 2, the intermediary agency imposed by the payment service user is liable in place of the payment service provider of the payment service user. Section 675y (3) sentence 1 applies with the necessary modifications to the liability of a payment service provider under sentences 2 to 4.
Section 676
Proof of execution of payment transactions
If it is a matter of dispute between the payment service user and his payment service provider as to whether the payment transaction was implemented properly, the payment service provider must prove that the payment transaction was recorded and posted properly, and not impaired by any malfunction.
Section 676a
Equalisation claim
If the cause for the liability of a payment service provider under sections 675y and 675z lies in the area of responsibility of another payment service provider or of an intermediary agency, then he may demand from the other payment service provider or intermediary agency compensation for the damage incurred by him in fulfilment of the claims of a payment service user under sections 675y and 675z.
Section 676b
Notification of unauthorised or erroneously executed payment transactions
(1) The payment service user must inform his payment service provider promptly after learning of an unauthorised or erroneously executed payment transaction.
(2) Claims and objections of the payment service user against the payment service provider under this subchapter are ruled out if the latter has not informed his payment service provider accordingly at the latest 13 months after the day of debiting with an unauthorised or erroneously executed payment transaction. The period only begins to run when the payment service provider has provided the payment service user with the information regarding the payment transaction under Article 248 sections 7, 10 or section 14 of the Introductory Act to the German Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche]; otherwise, the date of notification is material to the beginning of the deadline period.
(3) Section (2) applies to other claims than those named in section 675z sentence 1 by the payment service user against his payment service provider because of an unauthorised or erroneously-executed payment transaction on proviso that the payment service user is still able to assert these claims on expiry of the deadline period if he was unable to meet the deadline without culpability.
Section 676c
Disclaimer
Claims under this chapter are ruled out if the circumstances giving rise to a claim
1. are based on an unusual, unforeseeable event on which the party invoking this event has no influence and the consequences of which could not have been prevented despite application of due diligence, or
2. were caused by the payment service provider on the basis of a statutory obligation.
Leave a Reply