Payment In Commercial Transactions Research Articles

A Claim for Compensation for Recovery Costs under Article 10 of the Act on Counteracting Excessive Delays in Commercial Transactions – Selected Issues

Compensation for recovery costs, referred to in Article 10 of the Act on Counteracting Late Payments in Commercial Transactions, is an additional amount due to a creditor when a debtor delays a pecuniary performance arising from a commercial transaction. The nature of this performance is controversial both among legal scholars and in judicial decisions. On the one hand, it is pointed out that it does not depend on incurring any costs, while, on the other, the meaning of the word “compensation” is emphasized, and no costs are expected to be borne in order to acquire the right to claim them from the debtor. The author of the article brings together some of the currently trending views and reviews them taking into account some key challenges. He then supports one of them, justifying his choice and highlighting its practical consequences. Also, he indicates under what conditions and using which defence measures the debtor can defend themselves against such claims before court.

Governments’ Late Payments and Firms’ Survival: Evidence from the European Union

Outstanding payments in commercial transactions, if delayed beyond the agreed period of time, can engender a range of negative externalities and expose firms to severe liquidity risks. In this study we examine to what extent stricter regulations addressing payment backlogs, brought about by the EU directive on late payments, have affected firms’ performance. We focus on government-to-business activities and on the firms’ responses to the introduction of these regulations. Our evidence suggests that firms’ exit rates fall relatively more in sectors that sell a larger fraction of their output to the government. We document more pronounced effects in sectors with a large share of small firms, for countries characterized by longer payment delays, and for countries with high levels of perceived corruption. Taken together, our findings indicate that more discipline in governments’ payment terms can have considerable effects on economic activity.

Late Payments in Poland: Economic and Legal Perspectives

Purpose: The primary purpose of this paper is to carry out a legal and economic analysis of payment bottlenecks in Poland vs. its EU peers. From an economic perspective, the authors analyzed changes in late payments, checked whether overdue invoices become increasingly common, and looked at the losses from uncollected payments in selected EU countries compared against Poland. In turn, when it comes to the legal perspective, the analysis was focused on the evolution of the EU’s legislative policy for late payments and on key challenges and problems related to policy implementation. Also, based on the example of the Polish legal system, this paper described the policy for combating late payment in commercial transactions. Approach/methodology/design: This paper deals with measures in place in EU and national legal systems. The analysis relied on descriptive statistics methods, comparative methods, and legal and historical methods. The authors used the relevant legal acts, the literature on the subject and statistical reports. Findings: While this study shows that overdue payments become less and less problematic in Europe, EU member countries strongly differ in the pace of that process and continue to incur considerable financial losses. Statistical data suggests that existing sanctions have failed to discourage fraudulent contractors, and the guaranteed means of legal protection for creditors have not contributed to tangible improvements in their actual situation. Practical implications: These considerations could be of use in designing an active legislative policy geared towards enabling a true comprehensive protection against the impacts of late payments in commercial transactions. Originality/value: This paper enhances and updates knowledge of legal and economic conditions for combating payment bottlenecks.

Instrumenti za obezbeđenje naplate u zadatim rokovima u zakonu o obligacionim odnosima

In this scientific paper, an analysis of the instruments for ensuring payments within the given deadlines in commercial transactions provided in the Law on Obligations has been performed. During the research and development of the scientific paper, the methods of analysis and the inductive-deductive method were used. Debt arrears as a legal institute is known as far back as Roman law. The Law on Obligations precisely defined the debt arrears. Pursuant to the provisions of the Law on Obligations, the debtor is late when he does not fulfill the obligation within the deadline set for fulfillment. Business conditions in our economy where many legal entities are insolvent and exceed the set deadlines for fulfilling obligations, have imposed the need for a precise legal regulation of instruments for improving the execution of payments within the given deadlines in commercial transactions between legal entities. The Law on Obligations provides instruments to improve the execution of payments in commercial transactions, which are used as additional instruments to the Law on Deadlines for Settlement of Monetary Obligations in Commercial Transactions.

Payment Delays and Financial Performance of Construction Firms in Vihiga County, Kenya

The purpose of this study was to establish whether payment delays affect financial performance of construction firms. The study employed cross sectional research design, stratified simple random sampling and census survey of 32 construction firms. The study relied on secondary data from audited financial reports. Data was analyzed using both descriptive and inferential statistics - multivariate analysis. There was no statistical significant effect between delayed payments and financial performance as measured by Net profit margin and current ratio, probably other factors or measures such as management style and strategies could have affected the two variables. Our conclusion however, is that late payments in commercial transactions by the public or generations and private entities have detrimental effects on the business environment, especially by exacerbating the burden of already financially constrained firms which can ultimately push them out of business. The study was only limited to one financial year and construction firm.

Paušalna naknada troškova naplate u poslovnim transakcijama

Zakonom o financijskom poslovanju i predstečajnoj nagodbi iz 2012. (ZFPPN) u hrvatsko pravo uvedena je „posebna naknada za troškove prouzročene vjerovniku dužnikovim zakašnjenjem s ispunjenjem novčane obveze u poslovnim transakcijama“ kao nova pravna posljedica dužničkoga zakašnjenja s plaćanjem. Zakonski iznos ove paušalne naknade troškova naplate propisan je odredbom čl. 13. st. 1. ZFPPN-a prema kojoj je vjerovnik novčane obveze ovlašten na paušalnu naknadu u iznosu koji odgovara kunskoj protuvrijednosti iznosa od 40 €. U radu se raspravlja o dopuštenosti ugovaranja paušalne naknade troškova naplate u iznosu različitom od iznosa iz čl. 13. st. 1. ZFPPN-a, kao i o odnosu vjerovnikova zahtjeva za isplatom paušalne naknade i njegova zahtjeva za naknadom štete zbog dužničkoga zakašnjenja.

Posebna naknada za troškove prouzročene vjerovniku dužnikovim zakašnjenjem s ispunjenjem novčane obveze u poslovnim transakcijama (paušalna naknada troškova naplate)

Jedna od novina koju je u hrvatsko pravo unio Zakon o financijskom poslovanju i predstečajnoj nagodbi iz 2012. godine (ZFPPN) jest i uvođenje nove pravne posljedice dužničkoga zakašnjenja s plaćanjem u, tzv. poslovnim transakcijama. Odredbom čl. 13. st. 1. ZFPPN-a, vjerovnik novčane obveze ovlašten je ex lege zahtijevati od dužnika paušalnu naknadu u iznosu koji odgovara kunskoj protuvrijednosti iznosa od četrdeset eura. Ta paušalna naknada koju ZFPPN naziva „posebnom naknadom za troškove prouzročene vjerovniku dužnikovim zakašnjenjem s ispunjenjem novčane obveze u poslovnim transakcijama“ uvedena je u hrvatsko pravo radi usklađivanja s odredbama čl. 6. Direktive 2011/7/EU. U radu se raspravlja o njezinoj pravnoj prirodi i funkcijama te se analiziraju pretpostavke za nastanak vjerovnikova prava na paušalnu naknadu te dospjelost i zastara zahtjeva za isplatom te naknade. U radu iznesena tumačenja odredaba ZFPPN-a temelje se na poredbenopravnoj analizi i usklađenoj interpretaciji ZFPPN-a s Direktivom 2011/7/EU. U primjeni poredbenopravne metode razmatrana su stajališta austrijskog i njemačkog prava, a istraživanjem su obuhvaćeni i propisi svih država članica Europske unije kojima su one u nacionalnom pravu transponirale odredbe čl. 6. Direktive 2011/7/EU.

A Critical Review of Legal Protection Against E-Money Users in Indonesia

Protection of e-money users must be done based on the increasingly advanced science and technology. The formulation of the problems in this study are: (1) What is the legal provision regarding e-money as a means of payment in commercial transactions in Indonesia? (2) What is the legal protection of e-money users in conducting commercial transactions in Indonesia? The formulation of the problem was studied in depth using the normative juridical approach. The results of this study are: First, e-money is regulated in Bank Indonesia Regulation Number 10/8 / PBI / 2008 concerning Amendments to Bank Indonesia Regulation Number 7/52 / PBI / 2008 concerning the implementation of Card-Based Payment Instrument Activities. Bank Indonesia Regulation Number 16/8 / PBI / 2014 concerning Amendments to Bank Indonesia Regulation Number 11/12 / PBI / 2009 concerning Electronic Money (Electronic Money). E-money issuers as regulated in Article 1 paragraph (1) of Bank Indonesia Regulation Number 16/8 / PBI / 2014 are Banks and Non-Bank Institutions incorporated in the form of Limited Liability Companies (PT). While the legal status / relationship between the holders of electronic money with the issuer of e-money money is based on the contract of sale and purchase, which has been regulated in Article 1457 of the Civil Code. Second, legal protection for e-money users can be done in two ways, namely: Preventive Legal Protection and Repressive Legal Protection

A Critical Review of Legal Protection Against E-Money Users in Indonesia

Protection of e-money users must be done based on the increasingly advanced science and technology. The formulation of the problems in this study are: (1) What is the legal provision regarding e-money as a means of payment in commercial transactions in Indonesia? (2) What is the legal protection of e-money users in conducting commercial transactions in Indonesia? The formulation of the problem was studied in depth using the normative juridical approach. The results of this study are: First, e-money is regulated in Bank Indonesia Regulation Number 10/8 / PBI / 2008 concerning Amendments to Bank Indonesia Regulation Number 7/52 / PBI / 2008 concerning the implementation of Card-Based Payment Instrument Activities. Bank Indonesia Regulation Number 16/8 / PBI / 2014 concerning Amendments to Bank Indonesia Regulation Number 11/12 / PBI / 2009 concerning Electronic Money (Electronic Money). E-money issuers as regulated in Article 1 paragraph (1) of Bank Indonesia Regulation Number 16/8 / PBI / 2014 are Banks and Non-Bank Institutions incorporated in the form of Limited Liability Companies (PT). While the legal status / relationship between the holders of electronic money with the issuer of e-money money is based on the contract of sale and purchase, which has been regulated in Article 1457 of the Civil Code. Second, legal protection for e-money users can be done in two ways, namely: Preventive Legal Protection and Repressive Legal Protection

ZWALCZANIE OPÓŹNIEŃ W PŁATNOŚCIACH W TRANSAKCJACH HANDLOWYCH W ŚWIETLE DYREKTYWY 2000/35/WE I PRAWA POLSKIEGO

Combating Late Payment in Commercial Transactions in the Light of the Directive 2000/35/EC and in the Polish LawSummaryThe European Community has recognized late payments as one of important obstacles to a good functioning of the internal market. The preparatory works of the EC in this field prove that a long way has been come from the European Parliament’s initiative to the directive 2000/35/E C of the European Parliament and the Council dated 29 June 2000 on combating late payment in commercial transactions. A rather limited scope of the directive is a result of extensive modifications introduced by the Council to the initial proposals. The directive concentrates on the interests in case of late payment, reasonable compensation for recovery costs, retention of title and recovery procedures for unchallenged claims. The above study presents the substance of the directive and its transposition rules.The first attempt to implement the EC directive in Poland was the law of 6 September 2001. As it was not satisfactory, a new law on payment terms in commercial transactions was issued on 12 June 2003. It will enter into force on 1 January 2004. This new law is limited to interests and procedural aspects. The above study presents the results of the directive’s transposition within this law. The act of law from 2003 certainly sets new limits on the freedom of contracts, but it is an interesting and rare example of a protection of weaker parts to the contract, which are not consumers, but enterprises. W hat should be reproached is that a typical civil matter is regulated in an act of law separate from the Polish Civil Code. A breach of the rule of the integrity of the Polish Civil Code is again a price for the fast implementation of the EC law in Poland.

The importance of bank guarantees in modern business (business environment in Serbia)

In contemporary international payment transactions, there takes place frequent use of bank guarantees as collateral payment in commercial transactions. The bank guarantee is usually required when it comes to specific business agreements that require stronger commitment and assurance that all contractual obligations will be implemented exactly as indicated. Knowledge of the use of bank guarantees allows better negotiating position in making business, quicker response to the demands of public calls for tenders and the provision of their own claims. Because of its rapid and efficient implementation, the bank guarantee is one of the most commonly used collateral in international business. Keywords: bank guarantee, business environment in Serbia, legal framework of bank guarantees. JEL Classification: G21, M16, M21

Late Payments in Commercial Transactions in the European Union: Are We Getting Better?

Over the years, late payments in commercial transactions have been recognized as one of the main problems of the EU companies, especially for Small and Medium sized (SMEs) ones. The European Union has made several efforts to solve this problem through legal regulations, which are supposed to accelerate the payment processes between companies. This descriptive paper is aimed at analyzing the current situation in the area of late payments in commercial transactions in the European Union. In the first part of this paper, an overview of the legal institutes, which regulate the area of late payments at the EU level, will be given.In the second part, the payment behaviour across the EU Member States will be analyzed by presenting data from payment reports of 2005, 2014, and 2015. Moreover, data on payment duration and payment delays of geographically different EU Member States (Germany, Hungary, France, and Italy) will be presented. The latter is carried out in order to compare the payment behaviour in three different periods and stakeholders (Consumer to Business, Business to Business, or Business to Public Sector).The final goal of this study on the one hand is to arrive at a conclusion of whether current legal provisions, in combating late payments in the EU, are providing the expected results and on the other hand to locate the main problems in this area and suggest further actions.

The Responsibility of Signatories in Commercial Documents for Payment of the Document in Iranian Law in Comparison to French law and the Geneva Conventions Uniform Law

Commercial documents which are the means of payment in commercial transactions can help build better business relationships including sales and transport, provide services and establish order between merchants and this role makes these documents more important and necessitates the existence of concise and comprehensive regulations about them. The author of this study is going to respond all questions in this regard as well as the commercial documents signatories’ liability for the document’s payment in Iranian Law in comparison to that in French Law and the Geneva Conventions uniform law in a descriptive-analytical way through a library study and note-taking by going directly to the sources and references.

Problematyka zatorów płatniczych w transakcjach handlowych – aspekty prawne i ekonomiczne

The main purpose of the article is to present economic and legal aspects of payment backlogs in commercial transactions. In terms of economic aspects, the study focuses on the structure and cycle diversity of corporate receivables, payment terms and the scale of losses caused by late payments in the chosen European countries. The analysis was based on the data presented in the reports of the multinational information agency Intrum Justitia. The study shows that paying credibility in European countries is strongly diversifi ed. The most reliable and favourable situation regarding the analysed aspect should be enjoyed by the Scandinavian countries, Finland, Island and Switzerland. In turn, the least stable situation and gravest problems relating paying credibility occurred in the Southern European countries, especially in Greece, Bosnia and Herzegovina, Portugal, Croatia, Bulgaria, Serbia, Romania and Cyprus. The legal aspects of the payment backlogs were analysed on the ground of both EU and domestic law. The brief characteristics of both Directive 2000/35/EC of 29.6.2000 on combating late payment in commercial transactions and Directive 2011/7/EU of 16.02.2011 on combating late payment in commercial transactions was presented in the article. Furthermore, the article contains a brief analysis of the domestic Act of 8.03.2013 – Payments Terms in Commercial Transaction.

Implementation of directive 2011/7/EU on combating late payment in commercial transactions in the Republic of Macedonia: The Financial Discipline Act

In the Republic of Macedonia, the legislator has tried to solve the problem of late payment in commercial transactions by enacting the Financial Discipline Act. The justifications for enacting this Act were the illiquidity of the business sector and the implementation of the EU Directive on combating late payment in commercial transactions. Yet, the Act includes several differences in comparison to the regime envisaged in the Directive. The time limits governing the performance of monetary liabilities in transactions between economic operators (undertakings) are identical with those in the EU Directive; however, the Act does not regulate payment in installment and does not provide for an extension of time limits unless expressly agreed. On the other hand, public authorities have a few privileges: time limits for commercial transactions between public authorities and economic operators are identical with the time limits for transactions between economic operators (whereas in the Directive time limits for public authorities are shorter); contracts on perennial procurement are exempt from compliance with this Act; and particular categories of public authorities should comply with the general time limits for commercial transactions as of 1 January 2016. Additionally, considering the prescribed misdemeanor sanctions applicable in cases where the debtor has failed to pay within the prescribed time limits, the purpose of the Financial Discipline Act remains unclear. Has it been enacted to increase or to reduce the liquidity in the national economy?.

Combatting late payments in commercial transactions in the European Union

The lack of financial discipline in payments in commercial transactions between entrepreneurs and persons of public law is a perennial problem of the European economy. Late payments cause insolvency and complicate financial management of undertakings, which greatly reduces their competitiveness and profitability in the market. The risk of these adverse effects significantly increased in the period of the economic crisis. This article conducts a juridical and economic analysis of European legislation on combatting late payments in commercial transactions with a special accent being put on Croatian legislation, as the youngest European Member State.

Case: ECJ – QDQ Media

Where is not possible on the basis of national law to include, in the calculation of the costs which an individual who owes a business debt might be ordered to pay, the expenses arising from representation by an abogado or procurador of the creditor in judicial proceedings for the recovery of that debt, Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions cannot for itself serve as the basis for the inclusion of such expenses.

The Late Payment Directive – a step towards an emerging European Private Law?

Abstract: The Directive on combating late payment in commercial transactions – Directive 2000/35/EC – had to be transposed into national law by August 2002. It is designed to reinforce the position of the creditor in cases of late payment. It defines cases where interest and/or compensation are due and fixes the level of interest at 7 percentage points above the interest rate of the European Central Bank. An unfairness clause prevents powerful undertakings from setting contractual payment terms that undermine the rules of the Directive. It thus limits party autonomy and tries to protect small and medium-sized enterprises against grossly unfair contract terms. The Directive also introduces a few basic principles on retention of title with the aim of enabling the creditor to exercise his rights throughout the Community. A careful examination of these provisions leads to the conclusion that the lex rei sitae should no longer be applied to movable goods. Instead, the lex contractus or, failing this, the law of the seller’s home country should determine the fate of the seller’s goods. In order to make the provisions of the Directive effective, it contains rules on speedy recovery procedures. Thus, Member States are obliged to ensure that their rules on civil procedure permit a creditor to obtain an enforceable title within 90 calendar days of lodging an action. The Directive is placed in the context of an emerging European private law. In particular, it will be part of the Commission’s efforts to create a European contract law.

OGH vom 27.1.1999, 3 Ob 225/98d, JBL 1999, 470 Zur Verzinsung eines Schadensersatzanspruches beim Schuldnerverzug

The following set of facts formed the basis of the decision of the Austrian OGH: The parties were land owners. Jn 1992 excavation work at the defendant's premises caused damage to the claimant's neighbouring house because inadequate precautions were taken. The amount of the damage (repair costs, reduction in value etc.) came to more than 1.85 million Austrian Schillings. The claimant did not allow the repairs until the day of the decision of the OGII, and also did not claim any advance on the costs from the defendant. He worked from October 1993 with a bank loan, that exceeded the amount of the damages, which attracted interest at a rate higher than the legal rate. In his claim, the claimant sought compensation for his aforementioned damage including the full amount of interest that had accumulated through the delay in payment. The lower courts awarded the claimant his aforementioned damage, but only allowed his claim for interest at the legal rate of 4%. In his application for Revision the claimant sought reimbursement of the sum constituting the difference between the legal rate of interest and the rate that he claimed to have paid. According to the OGII, a claimant's claim for interest is justified in so far as he has been able to show that he has actually suffered damage in the form of interest payments of the amount claimed during the relevant time period. The issue is one of damage resulting from delay, irrespective of whether the person responsible for payment of compensation was approached for an advance of the costs involved in repairing the damage before credit was obtained or not. This head of damages — which is not limited by § 1333 AGBG — can also be claimed when the person responsible for compensation is liable to pay for the "positive damage" caused by the slight negligence of the tortfeasor. According to § 1298 AGBG it is the defendant who has the burden of pleading and proof of the absence of fault. It is irrelevant whether the claimant has incurred the amount claimed solely in repair costs. A claim is however excluded, because of the disqualification of fictitious repair costs, if it is established that no attempt to repair the damage will (or can) be made at all. The following authors investigate the issues raised by the decision from the point of view of Austrian, German (Pahlke, Christodoulon), Belgian (Temmerman), and Greek (Christodoulou) law, as well as with reference to the Principles of European Contract Law, the CISG, the Unidroit Principles and the European Parliament and Council Regulation on the Combauing of Late Payments in Commercial Transactions of 29.6.2000.

The proposal for a directive combating late payment in commercial transactions: some VAT implications

The proposal for a directive combating late payment in commercial transactions: some VAT implications