Direct Debit: No Prompt Contest often Implies Permission
It goes without saying that permitted direct debits cannot be reimbursed. Permission to directly access one's account can be given expressly or by implication. And when has an implied permission been given? The Federal Court of Justice answered this question on March 1, 2011 (re XI ZR 320/09).
Plaintiff in this case, was the checking bank of a car repair shop that went bankrupt in the mean time. The health insurance withdrew € 2,700 for employee's social security premiums from the defendant's account. About one month later, a temporary insolvency was ordered. The temporary bankruptcy manager soon contested the direct debit of the health insurance. Therefore the complaining bank credited the defendant's account. Now the bank is demanding reimbursement on grounds of unjust enrichment.
The court held that no high requirements are to be made for permitting the direct debit of social security premiums. When the account holder does not contest promptly, the debit is deemed permitted. Such implied permission is typically to be expected for regularly repeated direct debits from a long-term engagement or tax prepayments or social security premiums. Therefore in this case the debit would have been correct. The bank would rather have had the premiums of the health insurance claims bankruptcy-proof. Now, however, the bank has to stand in line with all the other creditors and hope for a penny out of the bankruptcy estate.
D&O Coverage for Incorrect Payments During Bankruptcy
Liability During Crisis and Bankruptcy of the Company