Your German Debtor asks for Relief from Payment?

Then you should use this opportunity to obtain a so called “abstraktes Schuldanerkenntnis” (an autonomous acknowledgement of debt) from your German debtor. This is sometimes also called “selbstständiges Schuldanerkenntnis” or “Schuldversprechen”.

In other words: You agree to grant the debtor a moratorium (or a deferred payment) of a few weeks or months, but only under the condition that the debtor signs a Schuldanerkenntnis (a formal “I owe you”).

Such a written debt acknowledgment according to section 781 German Civil Code improves the legal position of the creditor tremendously in case the debtor still does not pay after the delayed payment deadline. Firstly, this is because you can then sue the debtor in a so called “Urkundsverfahren”, which is an accelerated procedure under section 592 German Civil Procedure Rules in court. Secondly, the debtor is no longer allowed to raise objections against the validity of the initial debt.

However, such a debt acknowledgement is only accepted in court if it is in writing, i.e. it needs to be a physical document and contain the (“wet ink”) actual signature of the debtor acknowledging the debt. Emails or scanned signatures are not valid. Thus, you need to have the debtor sign the document (ideally in your presence) and you need to then obtain the original version of that IOU for your files, because you will have to submit the original document to the German court should you later decide to sue the debtor in the accelerated Urkundsprozess.

This is a very brief and simple example of a “Schuldanerkenntnis” (obviously we do not accept any liability and do not recommend that you use such a template without obtaining proper legal counsel first).

More information on litigation and legal fees in Germany is available in these posts:

For more on German business and corporate law see these posts:

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Experts on German-British and German-American Legal Matters

Since 2003, the German business and corporate law firm Graf Partners LLP specialises in British-German and US-German legal cases. Our German business and corporate lawyers are native speaker level fluent in English, have many years of practical experience with clients from Britiain and the USA and are part of a well established network of law, tax and accounting firms.

Managing partner Bernhard Schmeilzl was admitted as German Rechtsanwalt (attorney at law) to the Munich Bar in 2001 and specialises in international cases ever since, with a focus on German-American and German-English commercial, corporate and also probate cases. In addition to obtaining his German legal exams with distinction, he also graduated from the English University of Leicester where he obtained his Master of Laws degree in EU Commercial Law in 2003.

In 2014, Graf Partners LLP has set up the international litigation department GP Chambers which focuses on providing professional litigation services to British and US-American clients, both on a commercial and a private client level. The Graf Partners litigation lawyers regularly appear before German law Courts throughout the country and provide specialist legal advice, support and advocacy services in all commercial and civil law matters, ranging from contract disputes, corporate litigation and employment, to damage claims, divorces and contentious probate. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070.

Dodging Debts by Moving to the UK?

Has your German Debtor moved to the UK and declared himself or herself bankrupt under the UK / British Insolvency Rules?

Since we specialise in British-German legal matters, our firm very often gets enquiries from German individuals, companies or banks regarding a situation whereby a German individual has moved to the United Kingdom and declared bankruptcy in order to avoid paying their debts and liabilities back in Germany. Even further, it is quite common that civil proceedings will have been commenced in Germany, but particular the individual pleads that they do not need to repay the debt in Germany in light of their bankruptcy back in the UK.

The way individuals are able to declare bankruptcy in the UK is now much much easier than before (yes, a bit shocking considering it was not that difficult before). Previously, one would have to petition to the Court, however, as of 6 April 2016, the individual debtor no longer has to. Instead, they must make an online application to an adjudicator (not a judge anymore). If a debtor’s application provides all the prescribed information, and is considered appropriate, the adjudicator will automatically (this is indeed what makes the new system scary) make a bankruptcy order pursuant to its statutory jurisdiction under the Insolvency Act 1986 (IA 1986). The adjudicator is an official appointed by the Secretary of State for the Department for Business, Energy and Industrial Strategy (again – this adjudicator no longer has to be legally qualified).

The adjudicator has no inherent discretion over whether to make an order (again this probably concerns you if you believe that the individual is not telling the truth). If the statutory requirements for an order are met, the adjudicator must make it; if they are not met, the adjudicator cannot make the order.

The statutory requirements are:

  • The adjudicator had jurisdiction under section 263Iof the IA 1986 to determine the application on the date the application was made.
  • The debtor is unable to pay his or her debts at the date of the determination.
  • No bankruptcy petition is pending in relation to the debtor at the date of the determination.
  • No bankruptcy order has been made in respect of any of the debts which are the subject of the application at the date of the determination.

The adjudicator must make a bankruptcy order against the debtor, or refuse to make such an order, before the end of 28 days from the date of the bankruptcy application, unless the adjudicator requests further information from the debtor. If the adjudicator requests further information the adjudicator has 42 days from the date of the application to make an order. If the adjudicator does not respond to the debtor before the end of this period, the application is deemed refused.

What do you do in such a situation? Well, the process is not easy, but it is possible to overturn such a bankruptcy order, referred to a lot of time as a „sham bankruptcy in order to avoid paying debts“. The courts have retained their general jurisdiction over all bankruptcy proceedings commenced following the adjudicator’s bankruptcy order (including a rescission or annulment application), and will also hear any appeal from the adjudicator’s decision to refuse to make a bankruptcy order.  Moreover, it is an offence if the individual knowingly or recklessly to make any false representation or omission in making a bankruptcy application to the adjudicator or providing any information to the adjudicator in connection with a bankruptcy application.

It is also an offence knowingly or recklessly to fail to notify the adjudicator of a matter in accordance with a requirement imposed by the legislation. It does not matter whether or not a bankruptcy order is made as a result of the relevant application, and it will be no defence that any part of the offence was committed outside England and Wales.

So, if you are owed money in Germany and believe that your German debtor has run to the UK to declare themselves bankrupt, and in fact, it is a sham, you should contact the local bankruptcy department as soon as possible so that it can be overturned.

For more information about German law, in particular civil litigation and debt collection in Germany see these posts:

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The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070. To contact English solicitor Elissa Jelowicki in Munich please write an e-mail to elissa(AT)grafpartner.com.

Making a Court Claim for Money in Germany: It’s actually quite easy

Debt Collection in Germany: A practical Guide to Civil Court Procedures

So a German person or company owes you money but won’t pay. And you find that German courts have jurisdiction. Well, that may be unfortunate but it is no reason at all to abandon your claim. In fact, to sue for and collect a debt in Germany is easier and cheaper than you might expect, especially if you are from Britain or the United States where lawsuits are much more costly and tedious. German civil court procedure, regulated by the Code of Civil Procedure (Zivilprozessordnung), knows no jury, no pre-trial discovery and no pre-trial witness statements. Furthermore, German civil courts work fairly swift, on average a lawsuit takes less than six months to be decided (for details see this chart by the Federal Statistical Office; Labour Courts are the fastest, Tax Courts the slowest).

Here, the German litigation experts of Graf & Partners (GP Chambers) explain the basics of such German civil action and subsequent enforced collection. My lawyer colleagues shall forgive me for not explaining any and all exceptions to the principles. However, the goal of this article is to give the reader a rough idea whether it may be worthwhile to pursue a claim and what this would involve. Thus, our aim is not to explain every itty-bitty detail. The facts and tactics of a specific case must of course always be discussed with a lawyer.

Now, let us get your money. Here we go:

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