BREMER INKASSO GmbH: Out-of-court reminders do not require a specific form, but should be verifiable

“Time is money” - a common saying that has to be used especially when everything has to be done quickly, quickly, and there can be no standstill or gap in the schedule. The to-do list is spoken on the cell phone during the morning jog, the laptop keyboard is hammered while traveling by train, or the first phone calls are made to colleagues in the car. Banking transactions are also increasingly being carried out on the go, using a mobile phone, checking account balances or making transfers.

“So what could be more natural,” says Bernd Drumann, Managing Director of BREMER INKASSO GmbH, “than to want to do other business-necessary things with mobile devices while on the go, such as: B. to remind defaulting customers. Clients are increasingly approaching us about this and asking whether a reminder sent by SMS, WhatsApp or email is valid.”

Are reminders via digital correspondence legally effective? (Photo: © BREMER INKASSO GmbH / www.bremer-inkasso.de)
Are reminders via digital correspondence legally effective? (Photo: © BREMER INKASSO GmbH / www.bremer-inkasso.de)

Below are a few basic and important comments on the topic:

First, basics

“In my experience, the topic of reminders can never be fully addressed and the uncertainty that comes with it is always great. The law does not prescribe a specific form for reminders (Section 286 of the German Civil Code (BGB)). However, the reminder must be received. This means that it must go to the recipient. And you have to be able to prove that it went to him. Therefore, a form of transmission should be chosen for a reminder (at least if problems are expected) that can also be proven in case of doubt.”

About the meaning of a reminder

“A delivery or service received must be paid for! Point! Paying the bill is the responsibility of the debtor! Therefore, a reminder is, in principle, a friendly gesture by the creditor to inform the debtor of a failure. Probably also in the hope of being able to get them to pay so that they don't have to take any further (possibly legal) steps. (For this purpose, the reminder should contain all the essential data of the outstanding claim - possibly attach a copy of the invoice -, be recognizable as a clear request for payment and, if necessary, contain a payment deadline that can be clearly defined according to the calendar. The latter is not a must.). However, a reminder is also used to put a debtor in default of a due claim. a reminder before the invoice is due is ineffective! The delay, in turn, is a prerequisite for any damage caused by the delay to be compensated by the debtor.”

Reminders are important, but not always a must

“In principle, an invoice is always due immediately. If no separate payment deadline is agreed, default automatically occurs by law (for payment claims from contracts) no later than 30 days after the due date and receipt of the invoice or equivalent payment statement. This regulation also applies to consumers - but only if this was expressly pointed out to them in the invoice. If you do not want to wait for the default to automatically occur for a claim that is due after 30 days, you can send a reminder to put the debtor in default beforehand. Otherwise, the 30-day rule applies.

If a due date that can be clearly determined according to the calendar is specified in the contract (also in the form that the due date occurs a certain time, e.g. after call-off, delivery, receipt of invoice or termination), payment must be made at the latest. At the end of the day set for payment, the debtor is in default. A reminder is not necessary; a reminder before the due date has no effect. The debtor was sufficiently aware of the date on which the default occurred.”

(As everywhere, there are exceptions to the rule that would go beyond the scope of this article.)

Reminders via WhatsApp, SMS, email etc.?

"Yes that works. Since, as mentioned above, reminders do not require a specific form or a fixed transmission instrument and can therefore also be made orally, the legal validity of reminders via 'electronic media' is not a problem at the outset if they are formulated in a sufficiently specific manner. The problem lies more in the verifiability: in order for a reminder to be received, the burden of proof is on the person who refers to the occurrence of the default. In other words, the person who wants to put the debtor in default with a reminder. Usually the creditor.

However, anyone who sends reminders electronically cannot assume that the debtor 'at the other end' will use their electronic media in the same way as you do. Not everyone is permanently online or has an additional read confirmation set in the individual settings of their device, or “roughly adjusts” the requirements for the spam filter, retrieves emails or other electronic messages regularly or promptly, etc. etc. Not only whether the reminder was read, but also when, may be important.”

(Still) felt dubious

“Since it's not just nice people or people with a legitimate 'desire' who are on the internet these days, everyone knows about overflowing spam folders and all too often dismisses unsolicited offers, notifications, etc., there is a risk that reminders sent via email will also be sent -Email, SMS or WhatsApp are received by the recipient as 'dubious', 'rip-off' or 'fake news' and therefore remain unnoticed. Who really goes through their documents to see whether outstanding claims against the sender actually still need to be paid? In addition, there are enough forums on the internet that warn against responding to reminders or messages 'where someone wants money' or attachments should be opened (... and this would also make attaching a copy of the invoice obsolete).”

Just because it's feasible and permissible, it also makes sense?

“Everyone has to answer this question for themselves regarding reminders via email, SMS, WhatsApp, etc. Anyone who 'cites the occurrence of the default', may not have been able to realize their outstanding claim out of court and has to take legal action, must be able to prove that the reminder was received. So if you like to do business electronically, especially while on the go, you should think about whether you have all the data online, which should contain a clear reminder (preferably along with a copy of the invoice) so that it can be sent to the debtor and how he can access it in the best possible way proves.”

There is no such thing as “yellow of the egg”.

“...unless you personally hand the debtor the reminder in the presence of witnesses. But this is probably only possible in the rarest of cases. Mailing doesn't always go smoothly either, but a reminder by 'registered mail' still makes sense due to the evidentiary value. So why not, taking into account the spirit of the times and the current state of technology, combine electronic and postal shipping? This may be doubled, but as we know, double works better, or the receipt of the reminder can be proven in one way or the other.

source

BREMER INKASSO GmbH
Also read: Fraudulent demand letters in circulation – debt collection company does not exist!


If you enjoyed this post and value the importance of well-founded information, become part of the exclusive Mimikama Club! Support our work and help us promote awareness and combat misinformation. As a club member you receive:

📬 Special Weekly Newsletter: Get exclusive content straight to your inbox.
🎥 Exclusive video* “Fact Checker Basic Course”: Learn from Andre Wolf how to recognize and combat misinformation.
📅 Early access to in-depth articles and fact checks: always be one step ahead.
📄 Bonus articles, just for you: Discover content you won't find anywhere else.
📝 Participation in webinars and workshops : Join us live or watch the recordings.
✔️ Quality exchange: Discuss safely in our comment function without trolls and bots.

Join us and become part of a community that stands for truth and clarity. Together we can make the world a little better!

* In this special course, Andre Wolf will teach you how to recognize and effectively combat misinformation. After completing the video, you have the opportunity to join our research team and actively participate in the education - an opportunity that is exclusively reserved for our club members!


Notes:
1) This content reflects the current state of affairs at the time of publication. The reproduction of individual images, screenshots, embeds or video sequences serves to discuss the topic. 2) Individual contributions were created through the use of machine assistance and were carefully checked by the Mimikama editorial team before publication. ( Reason )