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Created on Friday, 26 December 2008 14:29

Last Updated on Friday, 28 December 2012 18:40

Demanding Direct Debit in Standard Terms

The Federal Court of Justice, BGH, reported in a judgment of May 29, 2008 (re III ZR 330/07) on the validity of direct debit clauses in standard terms and conditions.

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A sports studio used in its STC the clause:

“The customer permits the studio to directly debit the customer’s bank account for the monthly dues as long as no bank transfer has been agreed or this permission has been withdrawn.”

The plaintiff considers this stipulation as illegal following §307 I, II no. 1 BGB because of the word “abzubuchen (directly debit)” seen from the relevant prospective of the client, there is a requirement that the customer has to participate on the direct debit proceedings.

The lower courts as well as the BGH dismissed the case. It meets ruling case law that requesting via STC to permit direct debit is usually permissible. It is no unreasonable discrimination of a customer, to generally expect that she accepts direct debiting. Besides, this method of payment opens much potential for savings (time as well as money) on both sides. The customer does not have the trouble to correctly transfer and the studio much less organizational needs. The consumer is by no means disadvantaged because he will not come into default because the shop now just has to debit the account, the amount and time of debiting are quite understandable. Especially there is no risk for the consumer because she can lay a protest at her bank when the account has been wrongly deducted.

On the other hand, direct transferring (Abbuchungsverfahren, Abbuchungsauftragsverfahren) is generally considered as unreasonable for the customer and can therefore not be legally agreed in STC (§307 BGB). This version is an order on your behalf to your bank to forward the requested money. The shop is acting as your agent. Therefore, you cannot go and have the money refunded. You will have to demand any monies back and if the other contractual party is reluctant, you will have to seek legal recourse.

Hint:

When signing a contract, you can tell the difference, which kind of passive paying you be agreeing to by the wording: “Werden wir den Betrag von Ihrem Konto einziehen.”, “Bankeinzug”, Lastschrift(verfahren)”, etc. All these examples imply direct debiting, the shop taking from your account  “Abbuchen.” hints the direct transfer from your account. The wording “Wir werden diesen Betrag von Ihrem Konto abbuchen.” will typically point to direct transferring.