DE: Giro contract - no implied new contract in case of insolvency

Nov 17, 2021 Benn-Ibler Rechtsanwälte

If a debtor's checking (giro) account contract lapses due to the opening of bancruptcy proceedings and the bank is not aware of the bankruptcy proceedings, actions of the bank after the debtor's self-employment has been released cannot be interpreted as implied consent to the re-establishment of a giro contract, according to the German Federal Supreme Court (Bundesgerichtshof, BGH).

In the present case, the plaintiff demanded the surrender of his giro balance from the defendant bankruptcy trustee. In October 2014, bankruptcy proceedings were opened and the defendant was appointed as bankruptcy trustee. When the bankruptcy trustee learned of an account opened in September, he closed it. In December, the bankruptcy trustee released (allowed) the plaintiff to work in self-employment again. The BGH now had to decide whether an implied new conclusion of the giro contract between the bank and the plaintiff could be assumed for the time after the release and subsequently whether a claim for payment of the account balance existed.

In this regard, the BGH ruled that the credit balance on the account did not belong to the insolvency-free assets of the plaintiff. The opening of the giro account in September by the plaintiff was not effective, as he did not have the power of disposition of the account due to the appointment of a provisional bankruptcy trustee with reservation of consent. In any case, the giro contract expired with the opening of the bankruptcy proceedings. For the time after approval, no implied new conclusion of the giro contract between the bank and the plaintiff can be assumed. Whether conclusive conduct can be interpreted as a declaration of intent is determined by how conduct is understood from the objective perspective of the recipient of the declaration. For this to be the case, the bank would have to have taken actions for which an objective third party could come to the conclusion that the bank's conduct after the first of December could be understood as acceptance of an implied application for a new giro account. In the present case, the actions of the bank, from the perspective of an objective recipient, constitute conduct in accordance with the contract already concluded in 2014. For this reason alone, they cannot have any further legal value as a declaration.

BGH IX ZR 213/20 (16.09.2021)