Supreme Court: bank transfer as evidence of debtor's consent to debt repayment by third party
Under certain conditions, a third party may also settle (repay) a debt on a debtor’s behalf. The Supreme Court has dealt with the question of when a creditor may refuse such settlement. Refusal to accept repayment from a third party may have a serious negative impact on the creditor's assets.
Under the Civil Code, a creditor must accept debt repayment from a third party if the debtor agrees. They cannot refuse this repayment. Only if the debtor does not agree (consent) to the repayment of the debt by a third party can the creditor decide whether to accept this repayment from a third party.
The Supreme Court dealt with the issue of the form of consent to the repayment of a debt and clarified the conditions under which a creditor may refuse payment from a third party on behalf of a debtor. It emphasised that the debtor's consent does not have to be in writing, as implied consent is also sufficient. For example, if a debtor provides a third party with payment details for a bank transfer (account number, variable symbol, etc.) and the repayment is credited to the creditor's account in the agreed manner, the creditor cannot refuse the repayment. In such a situation, according to the court, there is no doubt that the debtor has given their consent.
The creditor may refuse repayment only if it is clear from all the circumstances that the debtor has not given consent. If this is not the case, consent is presumed. Although legal doctrine has thus far tended to assume that a third party must prove the debtor's consent, the Supreme Court has concluded that a creditor must accept repayment even in situations where it cannot verify the existence of consent with certainty.
Without the debtor's consent, the creditor is otherwise obliged to accept repayment if a third party guarantees or otherwise secures the debt. Typically, this will be a guarantor or pledgor.
Recommendation
Creditors should only refuse repayment from a third party if they have clear evidence that their debtor has not consented to the settlement of the debt by the third party. If the creditor returns the repayment without having specific evidence of the debtor's disagreement, they expose themselves to the risk of the debt already being settled by the third party's payment. Any return of the repayment could thus be considered unjust enrichment on the part of the third party. This can lead to unnecessary disputes and even to the creditor's claim becoming statute-barred.