General information
In principle, the IT service provider (or software manufacturer) is obliged to initially produce the software free of defects. Payment shall only become due when the customer/client (hereinafter referred to as: purchaser) declares acceptance (Section 640 BGB).
For larger projects, however, this would mean that the IT service provider would be forced to make considerable advance payments, which they are generally unable to make. For this reason, there is the option of advance payments, which has been explicitly regulated in Section 632a BGB since 01/01/2018.
This provision is intended to relieve the entrepreneur, in this case the IT service provider, who is obliged to make advance payments.
What does the statutory payment on account according to § 632a BGB mean?
Important: The provision does not regulate advance payments!
Rather, it stipulates that the contractor can demand partial payment for partial services already rendered.
This means that the IT service provider cannot first demand payment and then provide services, at least not in accordance with Section 632a BGB.
Important: The payment of an advance payment does not mean that the customer has declared a "partial acceptance" for a completed part of the software, at least not in accordance with Section 632a BGB.
However, such a "partial acceptance" can be contractually regulated if the corresponding requirements are met.
Entitlement to payment on account, when can the IT service provider assert this?
Important: This is a statutory claim. If the contracting parties have made a provision for advance payments in the contract, the contract takes precedence. In this case, a look at the contract is more helpful than a look at the law.
However, if nothing further is stipulated in the contract, the following applies:
The IT service provider is entitled to the payment on account when it has fulfilled its contractual (partial) services. The customer must therefore also have received the value of the service. A valuable partial service is difficult to define when creating software. This is because the customer can rarely do anything with a part of the software in isolation.
Example of the recoverability of a partial service:
The migration from one system to another system is owed. The export of the data from the old system in an agreed (or customary) format has an isolatable value for the customer. This can therefore be regarded as a valuable partial service.
Conclusion
The IT service provider can also demand an advance payment at the statutory level if the conditions for this are met. A contractual provision can achieve much more here, but here too there must be no unreasonable preferential treatment of one party to the contract, which could lead to the clause being inadmissible.
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