Damages for delay even in the event of assignment of the claim for compensation in lieu of performance - Group debt collection
The judgment of 19.02.2025 (VIII ZR 138/23), which is well worth reading, concerned a test case brought by the umbrella organization of consumer protection organizations against a company that buys up receivables; another company belonging to the same group acts as a debt collection service provider. The defendant debt purchaser is also registered as a debt collection service provider, but does not have its own dunning and enforcement department and does not provide any debt collection services. It therefore commissions its sister company, which is active in the debt collection sector, with debt collection. A framework agreement between the companies stipulates, among other things, that the collection fee is charged to the defendant, that the collection service provider claims payment of the collection fee from the debtors of the receivables and that payments by the debtors are first offset against the collection costs. Unrealized claims for collection fees are assigned by the defendant to the collection agency in lieu of performance. With its claim, the consumer protection association sought a declaration that the collection costs demanded by debtors did not constitute damage caused by default on the part of the debt collection agency.
In contrast to the Court of Appeal, the BGH also considers the collection costs to be compensable default damages in a group of companies and if the debtor does not have to pay the collection costs himself, but merely assigns his claim for compensation against the debtor in lieu of performance in the event of unsuccessful collection. In its reasoning, the BGH sets out the dogmatic principles of damages caused by default under civil law, according to which damage adequately caused by (payment) default also includes legal prosecution or collection costs if the collection order is issued after default has occurred and the creditor may consider these to be necessary and expedient for legal prosecution.
According to the difference hypothesis under the law of damages, prosecution and collection costs already constitute damage if the injured party is burdened with them in the sense of a liability, not only when he actually has to pay them. A loss measurable in money is only to be denied if the liability is legally (wholly or partially) non-existent. For example, accident-related rental car and expert costs are recognized as damages even if the injured party assigns his claim for compensation against the injuring party to the expert or landlord. Accordingly, the defendant's compensation model also constitutes damage in the form of the agreed collection fee. Moreover, it should be noted that deferral and assignment agreements only concern the internal relationship between the contracting parties, in this case between the defendant and the debt collection company. Insofar as the defendant is relieved of the actual payment of the collection costs, the collection service provider would be burdened with the risk of their realization. Such deferral and assignment agreements do not serve to benefit the defaulting debtor. Furthermore, it should be borne in mind that the defendant debtor is only not obliged to actually pay the collection costs because it was agreed that the debt collection service provider would collect these from the debtor. If the debtor were not obliged to reimburse the collection costs due to the agreement because damage was denied, the contradictory result would arise that the defendant would ultimately be burdened with the collection costs and suffer damage which it could not assert against the debtor.
The involvement of a debt collection company was also necessary and expedient for legal action. If a claim is more difficult from the outset or if a claim is not settled on first demand in simple cases, the injured party may instruct a lawyer or alternatively a debt collection agency to assert the claim. The creditor does what is necessary by putting the debtor in default and does not have to accept any further delay. The necessity does not cease to apply in view of the defendant's entry in the legal services register, as it does not have the necessary employees and infrastructure. Furthermore, the fact that the defendant and the debt collection company are part of the same group does not preclude this, as the recoverability of debt collection costs does not depend on the chosen organization of debt collection. If the creditor had fulfilled his obligation to issue an invoice and first reminder, he could demand reimbursement from the debtor of the costs incurred by him through the involvement of a lawyer or a debt collection agency. A group affiliation is then irrelevant. Furthermore, it is not abusive in the sense of competition law if the debtor does not bear the economic risk of debt collection, as the debt collection service provider primarily collects the principal claim and therefore pursues an interest worthy of protection. Furthermore, the group affiliation does not eliminate the contractual obligation to pay the collection fee.
Remuneration in accordance with the standards of the German Lawyers' Fees Act for each individual debt collection case is also not objectionable; the fact that the companies are linked by a framework agreement does not oblige them to agree lower remuneration and thus relieve the debtor.