Default

If the debtor is not culpably in default, the creditor has the right to choose. The debtor can either adhere to the contract or withdraw from it by setting a reasonable grace period.

If the debtor can be personally blamed for the delayed performance—if he or she is therefore at fault (negligence or intent)—the creditor can also assert claims for damages.

Example: You are a painter, and someone has commissioned a painting from you. You have a contractual obligation to complete the painting within two months. Your client has paid a deposit. After two months, the client asks if the painting is finished. You inform them that you have not yet started the painting because you had to complete other commissions first. Your client can either adhere to the contract or withdraw from the contract by setting a grace period and demanding a refund of the deposit.

If a contracting party does not accept the duly offered performance of the other party, this constitutes creditor default. If the creditor is in default, this triggers several legal consequences. In particular, the creditor's default causes a transfer of risk, i.e. if the item is accidentally lost, there is an impossibility attributable to the creditor as well as a reduction in liability and, if applicable, reimbursement of expenses. The contracting party that has provided its service in accordance with the contract is entitled to its consideration.

In the artistic field, there may be special regulations on creditor default if artists have a special interest in their contractual partners accepting their services, for example because the acceptance of services promotes their level of recognition or can lead to the sale of further works of art.

If, as an artist, you have a recognisable special interest in accepting your performance when the contract is concluded, the rules of debtor's delay apply to the creditor as an exception: you may be able to claim damages from your contractual partner for the failure to accept your performance.

Example: You are part of a band and are going on tour in Germany. You and your band have a recognisable interest in performing the gigs that goes beyond just paying the fee. After all, many fans want to come to the concerts and there are press events that will raise your profile. If a concert promoter cancels a concert, you are entitled to the agreed fee and may be able to claim damages.