A majority of the payments that are carried out today are executed through the electronic payment systems. Payments that are executed through these systems are administrated by payment service providers, these providers are, in general, banks. In spite of the socio-economic importance of payments and payment intermediation, there is an uncertainty regarding the legal status of payments and payment intermediation. Some describe payment intermediation as transport of means of payments, while some describe it in terms of claims and intermediation of information. There is, in other words, a need for clarification.
Since the international trade is increasing, more and more payments are made to receivers abroad. The trade with Germany is very important for Sweden.
Therefore, it can be an advantage for Swedish tradesmen, who are involved in businesses with German tradesmen, to know of the differences between Swedish and German law, when it comes to payments and payment intermediation. Also, in international trade, situations can occur that generally do not occur in domestic trade. EC-law must as well be taken into consideration, when discussing international payment intermediation between Sweden and Germany. I have in the thesis described the German legal system, in general features, and I have also made a brief outline of the Swedish international private law regulations that can be applied to a payment intermediation between Sweden and Germany. I have furthermore given a brief description of the relevant EC- regulations and -directives, in order to see to what extent a harmonization has been made, regarding payments and payment intermediation.
One of my conclusions, after having studied Swedish, German and international law, is that when the sender of a payment wants to execute a payment through the payment systems, he gives the sending bank a commission to transfer a certain amount to the receiver. In return, the sender denounces claims towards the bank, equivalent to that amount. The sending bank then gives the receiving bank a commission to credit the receiver’s account. In return, the receiving bank obtains compensation from the sending bank. The commission is final when the correct account has been credited with the correct amount at the correct time by the correct sender. I have further come to the conclusion that the receiver’s claim towards the receiving bank arises already when the receiving bank acquires the commission from the sending bank, and not when the receiver’s account is being credited.
I have thoroughly studied payments and payment intermediation according to both Swedish and German law, in order to see whether there are any differences between the legal systems. I have concluded, that there is a major difference in determining at what point of time a payment has been made, and therefore also whether the sender is in delay with the payment or not. According to Swedish law, the point of time when the receiver’s account is being credited is decisive. According to German law, at first hand, the point of time when the sender gives the commission to the sending bank is decisive. Another important difference is which legal relations the participators have with each other. In Swedish law, this matter has not been closely discussed, while in German law, in harmony with EC-law, the matter has been thoroughly analysed. The legal relations, concerning a payment intermediation, are to be regarded separately. This implies that the sender does not have legal relations with any other participant in the payment intermediation, for instance the receiving bank. I find that this model also is applicable to Swedish conditions.
Ekonomiska institutionen , 2004.