Reminder / Mahnung

May 09, 2023

A reminder is a request by the creditor to his/her debtor to perform the service owed by him/her. On one hand, it serves as a reminder and is intended to remind the debtor of his/her obligation to pay. Your contractual partner does not pay and you remind him/her to perform, i.e. to pay money. However, the legal significance of the reminder goes beyond this function: a reminder puts the debtor in default according to section 286(1) sentence 1 of the German Civil Code (BGB). He/she is liable for the entire damage resulting from the delay and owes default interest. In addition, he/she (only) has to bear the costs of enforcing the law from the time of default, e.g. relevant lawyer's and collection costs. Accordingly, it is important to observe the requirements that the law imposes on a reminder justifying default.

Requirements for a reminder

A reminder in the legal sense is to be understood as any clear and specific request by which the creditor unambiguously expresses that he/she demands the performance owed (BGH, judgement of 10.03.1998 - X ZR 70/96). It is not necessary that a specific deadline is set. The creditor only has to express clearly that he/she demands the performance. However, it may make sense to combine the setting of a deadline with the reminder, since the setting of a deadline is a requirement for a later withdrawal from the contract or compensation for damages instead of performance. (these damages do not refer to the delay in performance, but to any final failure to perform). If there are several claims, it must be clearly determined for which of the claims a reminder is being sent.

A special form of reminder is not required. The reminder can also be made by implied action and does not need to contain a designation as "reminder". However, sending an invoice for the first time is not sufficient. Even if this is provided with a payment deadline, this has been found to be insufficient by the highest courts (BGH, judgement of 25.10.2007 - III ZR 91/07).

It is also important that the reminder may only be issued after the due date. The term due date is understood to mean the point in time from which the creditor can demand performance. If no time for performance is determined or can be inferred from the circumstances, performance must in principle be made "immediately", section 271 (1) BGB.

Dispensability of a reminder

In certain cases - which are by no means rare in practice - a reminder is dispensable. The law conclusively lists such cases in section 286 (2) BGB. To put it simply, a reminder is not required if

- A date is set for the service according to the calendar

- A preceding event, e.g. the receipt of an invoice, is required from which an agreed period can be calculated in calendar terms (e.g. "one week after receipt of the invoice").

- The debtor seriously and finally refuses performance, or

- The immediate occurrence of the default is justified for special reasons and under consideration of the interests of both parties (e.g. if the debtor announces the immediate performance himself/herself and then does not perform, so-called self-reminder, or if the debtor prevents the receipt of the reminder by his/her behaviour).

In addition, a debtor is in default of a claim for payment at the latest if he/she does not pay within 30 days after the due date and receipt of an invoice or equivalent payment schedule, section 286 (3) sentence 1 BGB. However, this only applies to consumers if these consequences were specifically pointed out in the invoice.

If payment is not made in response to a reminder, the creditor must decide whether to initiate legal dunning proceedings or if he wants to bring an action directly before the competent court.