A debtor is a person who is subject to an obligation to perform as a result of an obligation. This obligation to perform is usually a monetary debt. The person who enters into an obligation to provide a service, such as the payment of a sum of money, is referred to as the debtor. In the debt relationship, the debtor faces the creditor to whom he owes the amount of money.
The debt relationship and the debtor
The term debtor is generally understood to mean someone who owes money to someone else. But in principle everyone is a debtor who has committed to performance. This can, but doesn’t always have to be, a cash benefit.
A distinction must be made in the contractual relationship:
- The legal obligation
This is an obligation that is based on legal regulations such as a damage comparison in the event of physical injury or damage to
property.
- The contractual obligation
This obligation results from a contractual agreement, such as a negotiated sales contract.
The debtor’s obligations
According to aviationopedia, the debtor is obliged to provide the services. A performance act alone is not enough to end the debt relationship – because the debtor also owes the creditor the success of the performance. This is regulated in Section 362 of the German Civil Code (Bürgerliches Gesetzbuch):
The due date of a service is based on the following order of priority:
- Contractual agreement
- circumstances
- Legal regulation
The debtor directory
This serves to protect business transactions from people who are not creditworthy. For a transitional period of several years, the debtor register has been kept in parallel since 01.01.2013, both according to the old and the new law. According to the new law, the following is entered:
- Anyone who has not met the obligation to provide the asset information.
- Anyone who has submitted an asset report, but from which it emerges that it is not possible to satisfy the obligee.
- Anyone who does not provide evidence of the complete satisfaction of the obligee within one month of submitting the asset information.
- If a bankruptcy opening was rejected due to lack of assets.
- If the discharge of residual debt has been refused or revoked.
But be careful, the creditor can only obtain certainty about the entry of a person if he obtains information from both lists of debtors.
The debtor may only inspect the debtor directory online for very specific reasons:
- For the purpose of foreclosure
- To meet legal obligations to check economic reliability.
- To check the requirement for the granting of public services.
- To avert economic disadvantages – these could arise, for example, from the fact that the person cannot meet his or her payment obligation.
- Insofar as these are necessary for the prosecution of criminal offenses and for enforcement.
- To receive a self-assessment of your own entries.
This information may be used for the purpose for which it was obtained. It is not permitted to pass these on to third parties. If information is to be deleted from the debtor register, then the debtor must do it himself after the purpose has been fulfilled. The query is logged by the online system and stored for a period of six months, including personal data.
What to do if a debtor does not pay
If someone has performed a service and the debtor does not meet his performance obligation, then the obligee has the right to sue the debtor or to initiate a dunning procedure. But for both it is necessary that the debtor is already in default with his performance obligation. This case occurs when the repayment contract or the performance date agreed in the contract has expired – if the creditor had to terminate the loan, for example – or the deadline set for payment has passed without success.
In the event of a civil action, the local or regional court has jurisdiction, depending on the amount that the two parties are arguing about. The lawsuit is heard at the regional court if the amount in dispute is over 5000 euros and if the amount is lower at the local court. A corresponding dunning procedure can also be initiated online at the responsible local court or by a lawyer. Both ways then end in foreclosure if the debtor does not pay within the set deadline.
What if the debtor dies?
If the debtor dies, the question arises for the creditor as to whether and how who can still collect his claim. The heir of the deceased becomes the legal successor of the deceased and according to § 1967 BGB he is liable to the creditors of the
testator for his debts.
If the obligee wishes to assert his claim of the existing claim against the heirs, the future correspondence must be addressed to the heirs and not to the deceased debtor. If an out-of-court clarification of the claim is not possible, then the creditor must take legal action against the heir. If the obligee has already obtained an enforcement title during the life of the testator, then the obligee can have this transferred to the heir as the new debtor in order to apply the enforcement measures to the heir if necessary. The contact between the creditor and the testator is rather loose and so the creditor does not even know whether the debtor is still alive or has already died. If this basic information about the testator and debtor is missing,
- Request to the competent probate court
- Request at the registry office
- Request at the registration office or registry office
- Request to the central register of wills
What to do if the debtor has moved away unknown?
A letter comes back with the note “moved unknown” and there is a risk of default. The reasons for a return letter arriving in the mailbox can be very diverse. Sometimes only a doorbell is missing or the postman cannot find the mailbox. But more and more debtors forgive “unknown” in order to evade their creditors.
Should such a case arise, professionals can help. In such a case (moved unknown) there is a legitimate interest on the part of the obligee to determine the current address of the customer. Because “moved unknown” does not mean undetectable, even if it has “disappeared from the ground” or he officially resides with his parents etc., but he stays with a friend with his belongings – where he is is of course not reported. The post may be sent to the parental address. In such a case, the involvement of an investigation service, which often finds out within a short time through research in the environment and database queries, where the debtor is and also how he finances his own living.
