Reader question: Do I have to hand over a cash deposit unprotected first and then demand proof of a separate placement afterwards?
For your new German rental flat the cash deposit is initially to be paid into a private account of the letting party. The separate placement will be dealt with later, you are told. So you should first pay and then request proof. For this sequence the judgment of the BGH VIII ZR 98/10 of 13 October 2010 is significant: payment may be made dependent on the designation of an insolvency‑protected account. [BGH9810]
First read the actually agreed security
Is it a cash deposit, another form of placement or a separate agreement under which you are to open an account yourself? Section 551 paragraph 3 BGB permits an agreed alternative form of placement, but in principle requires separation from the assets of the letting party. [BGB551]
Therefore place the complete deposit clause and the specific payment request side by side. A general new account number is not yet an intelligible declaration of which form of placement was agreed and how the separate holding is secured. The article does not confirm any particular banking product or any concrete account construction.
What the BGH decided on prior performance
In the decided case the parties to the tenancy had required the designation of an account meeting the statutory requirements and had announced payment onto it. The letting side maintained that the deposit had to be handed over in cash first. The BGH did not regard making payment dependent on the insolvency‑protected account as a corresponding breach of duty. [BGH9810]
Its reasoning did not want the statutory purpose of security to arise only after an unprotected interim phase. Without a special corresponding agreement the tenants also did not have to be referred to setting up a deposit account themselves. [BGH9810]
The historic judgment does not strike down the agreed deposit obligation. It concerns the protected manner of its fulfilment. Other contractual questions and further grounds for termination in the proceedings at the time were to be distinguished from this.
Document a concrete willingness to pay
Our editorial recommendation: state the unresolved account question clearly and ask for the appropriate, verifiable information for the agreed cash deposit. Record that you wish to pay the amount due by the clarified secure method. Keep the request, access and reply together.
This makes it traceable whether the matter concerns an unresolved form of security or an actual inability to pay. Mere non‑response leaves this distinction open and is no substitute for a consciously formulated clarification. If legal consequences are imminent you should have the concrete declaration professionally examined.
A hypothetical interim route with a gap
A letting party is told that the private everyday account will later be transferred into a separate deposit account. They have it checked whether the proposed route already secures the agreed and legally required protection for their payment. They do not confirm the private transfer solely on the promise of a later transfer.
The case is not a diagnosis of the letting party’s ability to pay. It is about the method of safeguarding the deposit irrespective of whether an insolvency is currently suspected.
After clarification complete the payment properly
If the legally reviewed payment route is agreed, allocate deposit amount and proof clearly to the tenancy. Ongoing rent, agreed deposit instalments and further collection costs retain their own respective basis. The article does not advocate a blanket payment stop for other claims.
Your result is a traceably secured deposit payment. The question of the correct account should be able to be clarified before the payment is made, while the actual obligation to the agreed security remains separately in force.