07.04.2022
06 - Delay in payment and the cost of a lawyer
At what point is it possible under German law to call in a lawyer, whose fee is then also to be borne by the debtor.
In the event of a delay in payment, the question always arises as to when a lawyer should be called in and whether the debtor must then pay the lawyer's additional fees. The Federal Court of Justice has currently provided clarity in its ruling of 24.02.2022.
In principle, a claim for damages is based on § 280 BGB. The case of damage consists of the delay in payment. In the case of a delay, the regulations according to § 286 BGB apply. When a delay exists is regulated by § 286. If no date has been agreed between the parties, a reminder is first absolutely necessary. A deadline is either a fixed agreed date, or a calculable date, such as the payment of rent by the 3rd of the month. A debtor is also in default if he seriously and permanently refuses performance or for special reasons. In the case of consumers, it is also necessary to show the payment deadline on the invoice.
According to the current ruling of the Federal Court of Justice (BGH), a debtor does not have to bear all legal costs, but only those that are necessary and expedient from the point of view of the injured party. In this context, it must be weighed up how the probable settlement of the claim looks from the point of view of the injured party. The creditor's duty is to prove that the creditor is in default. This is done, for example, by sending a reminder. If the debtor does not respond to the reminder, the creditor can press his claim by engaging a lawyer.
Provided that the debtor has been put in default in advance, the costs of the lawyer are thus part of the damage costs and must be reimbursed by the debtor in addition to the claim for payment to the creditor. In the case judged here, the creditor commissioned a lawyer with a reminder letter one day before the debtor settled the claim. Thus, only the attorney's fee was still at issue. In this case, the BGH ruled that the debtor in default of payment must also pay these attorney's fees, since the creditor could not see whether payment would be made. Therefore, if you are in default of payment but are willing to pay, you should formulate this to the creditor in a timely manner and in a demonstrable manner.
You can read the reasoning and the judgment in German here.