I didn’t receive a reminder after all – When are reminders legally considered served?
Reminders and the resulting legal consequences are extremely annoying for many clients, especially if they are related to a Schufa entry. At what point is a reminder considered to have been delivered to the recipient and who bears the risks of transport? – by Valentin Schulte economist & stud. iur at the law firm Dr. Thomas Schulte, Berlin.
Receipt of a declaration of intent requiring reception
A declaration of intent that needs to be received must be received by the recipient of this declaration of intent in absentia in order to be effective. This is determined in § 130 I BGB. The moment of receipt is determined by when the declaration came into the recipient’s sphere of influence and when the recipient was able to take note of the declaration under normal circumstances. The recipient’s mailbox is also part of the recipient’s sphere of power. The declaration is received at the time when the mailbox is usually emptied. From the moment a letter is placed in the recipient’s mailbox, the recipient bears possible risks (e.g. absence due to vacation). If the recipient refuses to accept the letter, the declaration is usually still considered to have been received. Receipt is thus fictitious. The same applies if the recipient prevents receipt due to circumstances for which he/she is responsible. A declaration of intent can also be received by the recipient if it is received by his representative.
Back to the reminder: A reminder does not represent a declaration of intent, but is described as an expression of intent similar to a legal transaction that must be received. Nevertheless, the regulations regarding the declaration of intent requiring receipt can be applied analogously to the receipt of a reminder. The receipt of the reminder is thus evaluated according to the standards of the declaration of intent requiring receipt.
Legal consequence of the reminder
„If the debtor does not perform in response to a reminder from the creditor that is issued after the due date, he is in default as a result of the reminder.“ states § 286 I p. 1 BGB. The debtor therefore does not pay, although the claim is due and has been reminded. According to § 280 I & II BGB, the creditor then has the possibility to claim resulting damages from the debtor. Furthermore, interest must be paid on the claim in accordance with § 288 BGB. This interest rate for claims against consumers is 5% above the prime rate, which corresponds to an interest rate of 4.12% per year. If reminders are ignored, there is thus the threat of a continuous increase in the claim.
Reminder ignored, is now a Schufaeintrag threatened?
In § 31 II No. 4 Federal Data Protection Act (BDSG) is regulated, when after reminders entries may be made. The BDSG serves in the legal area of the Federal Republic of Germany, the concretization of the Data Protection Regulation DSGVO and thus also contains provisions on data storage and data use of third-party data by Schufa.
Section 31 II No. 4 BDSG states that reminders can be used to determine the score if the following conditions are met:
Two written reminders must have been issued.
At least four weeks must have passed since the first reminder.
The debtor has been informed that a credit entry is imminent.
The debtor has not disputed the claim.
Ignoring reminders can therefore have unpleasant consequences for the person concerned due to an adjustment of the Schufa score. It is legitimate to dispute reminders, but the procedure should be discussed with a lawyer in order to avoid these unpleasant consequences.
Valentin Markus Schulte
Economist, stud. iur
Law office Dr. Thomas Schulte
Phone: +49 30 221922020
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