Term and significance of ‘Betagung’
The term Betagung is a term used in German law and describes the state of a due claim where the debtor is in default with their performance, provided that the legal prerequisites are met. ‘Betagung’ is particularly significant in connection with payment default, the dunning process, and the enforcement of claims.
Definition of Betagung
The ‘Betagung’ (from Middle High German ‘betagen’, meaning ‘to put in delay’) describes the legal situation where a due claim exists, but the debtor does not perform in time and thus falls into default. ‘Betagung’ is a core element in debt and payment law and forms the basis for further legal steps on the part of the creditor.
Legal basis of Betagung
Due date of a claim (§§ 271, 286 BGB)
The primary prerequisite for a Betagung is that the claim is due (§ 271 BGB). A claim becomes due when the creditor can demand the performance from the debtor. Only upon maturity can default and thus Betagung arise.
Default generally occurs when the debtor, despite due date, does not perform and a reminder has been issued—or a reminder is not required in certain cases (§ 286 BGB). Betagung is also used synonymously for the occurrence of default.
Reminder and default
As a rule, a reminder is required for the debtor to fall into default and for Betagung to occur. In certain cases, however, the default—and thus Betagung—occurs automatically, for example when the time of performance is determined by the calendar or when the debtor seriously and definitively refuses performance.
Exception: Dispensing with a reminder
A reminder is dispensable if a time for performance is set according to the calendar, performance is to be preceded by an event and a reasonable period for performance has been determined, the debtor seriously and definitively refuses performance, or special reasons exist that make service of a reminder appear futile (§ 286 para. 2 BGB).
Significance of Betagung for further legal consequences
Betagung is a prerequisite for various secondary claims by the creditor. Once a debtor is ‘betagt’, default interest (§ 288 BGB) as well as compensation for damage caused by default can be claimed.
Default interest
Once Betagung occurs, the right to default interest arises over the owed monetary claim. According to § 288 BGB, the statutory interest rate is generally 5 percentage points above the base rate; for transactions between businesses and consumers, it is 9 percentage points over the base rate.
Compensation for delay damages
Within the scope of Betagung, the debtor is also liable for compensation for damages caused by the debtor’s default (§ 286 para. 1 BGB). This includes, for example, additional dunning costs, court costs, or attorney fees incurred for enforcing the claim.
Withdrawal and damages instead of performance
If a deadline or grace period for performance has expired without result, the creditor can alternatively withdraw from the contract or claim damages instead of performance (§§ 323, 280, 281 BGB).
Relevance of Betagung in different areas of law
Betagung in civil and debt law
In civil law, Betagung is a key element in enforcing performance claims, especially in the context of purchase, rental, and work contracts. In the event of payment default after delivery of goods, completion of a work, or provision of a service, Betagung is regularly the starting point for default damages and further measures.
Betagung in enforcement law
Enforcement law requires ‘betagte’ claims as a prerequisite for initiating enforcement measures. Only after Betagung has occurred—and thus after maturity and default—can an enforcement title be applied for at the competent court.
Betagung in insolvency law
In insolvency law, Betagung also plays a pivotal role. Here, the decisive factor is when claims against the debtor became due (‘betagt’) in order to register them as insolvency claims in the insolvency proceedings.
Summary and significance in practice
Betagung forms a central component of the law on disruption of performance in the German Civil Code and serves as a significant starting point for numerous legal consequences—from liability for interest payments and damages, to rights of withdrawal and enforcement. It marks the point in time when a debtor, after maturity of their obligation, fails to fulfill it, thus entitling the creditor to assert contractual and statutory secondary rights.
Exact knowledge of the legal requirements and consequences of Betagung is of crucial importance for the effective assertion and enforcement of claims in business life, private transactions, and in legal disputes.
Frequently asked questions
What legal requirements must be met for a Betagung in civil procedure?
In the context of civil procedure, a Betagung is generally only permissible under certain conditions and may only be ordered by the court. The party seeking Betagung must submit a reasoned application setting out why an immediate hearing is not possible or reasonable. Recognized reasons for Betagung include, for example, the sudden illness of a party or their attorney, the unavailability of important witnesses, or new, unforeseen events closely connected to the proceedings. The application must generally be made before the scheduled court date and must be substantiated. The court then examines whether there is a substantial reason that makes Betagung absolutely necessary and whether the postponement does not unreasonably infringe on the interests of the opposing party. The decision about Betagung is at the court’s discretion and is not subject to appeal, unless arbitrariness is present.
What formal requirements must be observed when applying for a Betagung?
An application for Betagung must normally be made in writing, and the applicant must specify the exact hearing date as well as the significant reason for the postponement. A credible presentation of the reason for Betagung is mandatory. Supporting documents may have to be attached—such as a doctor’s certificate in case of illness or a confirmation of prevention by a third party. The court can require additional proof and, in individual cases, accept an affidavit as evidence. The application should also be submitted in good time to avoid possible absence from the scheduled date. Late applications for Betagung, for example on the day of the hearing or afterwards, are generally rejected unless particularly serious and unforeseeable reasons arise.
What typical reasons are recognized by courts as justification for a Betagung?
Courts recognize Betagung mainly for unforeseen and serious reasons. These include in particular serious illnesses of parties, their representatives, or witnesses, which are documented by certificate; sudden, unavoidable professional obligations, such as attorneys’ scheduling conflicts due to other court dates; or force majeure, for example natural disasters or traffic accidents shortly before the hearing. Family emergencies may also be accepted under special circumstances. By contrast, reasons such as vacations, general work overload, or lack of preparation are usually not considered significant reasons for Betagung.
What are the legal consequences of an unjustified Betagung for the proceedings?
If a Betagung application is made without sufficient or substantiated reason and the court rejects it, the scheduled hearing takes place as planned. If the defaulting party does not appear, procedural default consequences threaten. In civil proceedings, this can mean a default judgment according to § 331 ZPO or other adverse decisions. Additionally, the court may, in cases of willful or culpable delay, impose costs under § 152 ZPO on the party for delayed presence or unjustified Betagung. In extreme cases, abuse of applications for Betagung can be construed as procedural delay, which may entail further procedural and, in exceptional cases, professional consequences.
What are the parties’ duties to cooperate in connection with a Betagung?
The duties to cooperate include especially the timely and complete information to the court about circumstances relevant to Betagung. Parties and their representatives must present Betagung reasons in a substantiated and verifiable manner. It should be noted that deliberate concealment or delay of information can be detrimental. If a party fails to fulfill its duty to cooperate or conceals relevant circumstances, this can be deemed an abusive conduct of proceedings. Moreover, the party is obliged to check for and, if applicable, take obvious alternative measures—such as representation by another Rechtsanwalt—before applying for Betagung.
What regulations apply to Betagung in criminal proceedings compared to civil proceedings?
In criminal proceedings, substantially similar standards apply as in civil proceedings: Here, too, appointments can only be rescheduled for significant and unavoidable reasons. However, the court must especially observe the requirement of expediency, since longer proceedings can have serious adverse consequences for the accused and victims. The threshold for accepting a significant reason for Betagung is generally higher in criminal cases; mere inconveniences or organizational problems do not suffice. In juvenile or custody proceedings, Betagung is only possible in extremely exceptional circumstances.
How does a court-ordered Betagung affect statutes of limitation?
A Betagung ordered by the court generally has no impact on existing statutes of limitation. The interruption or suspension of the statute of limitations is governed exclusively by the statutory provisions (§§ 203 ff. BGB), in particular by the pendency or bringing of proceedings. Thus, postponing a hearing does not automatically extend the limitation period. However, if Betagung—such as through repeated applications—leads to a significant delay in the proceedings, the court will assess, in the case of missed deadlines, whether the party is at fault. Relief from procedural consequences due to default is only possible in special exceptional cases.
