usury
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Usury describes the offer of a service for a clearly excessive consideration while exploiting a weakness of a contractual partner. Causes can be, for example, an emergency or an asymmetrical distribution of information at the expense of a contractual partner. Usury can result in civil and criminal penalties . In a private law system based on private autonomy , persecution of usury is the exception to state price control.
For a long time was understood as usury only usury , against which the first usury laws even taught.
etymology
Etymologically, "usury" means something like yield, and above all rich yield (cf. proliferating greenery), and was therefore originally positive. When lending money or in kind (especially food or grains of importance here), the interest was meant, which the Church (but also, for example, in Jewish and Islamic teaching) rated negatively for various reasons: moral, because it meant to take advantage of one's neighbor's predicament; philosophical and theological, because it meant letting the sterile money and time that only God had available work for you; and economically and socially, because it meant ruin for those who could no longer manage their debts.
Historical development
Israelite law
The oldest surviving regulations on usury can be found in the Old Testament : In Lev 25.36 EU and Ps 15.5 [1] interest and usury are forbidden. Elsewhere, death is even threatened if interest and usury are nevertheless used ( Ez 18.13 EU ). Interest charges would have quickly led to financial ruin at the time and was seen as exploitation in an emergency. Those who were in need should be able to count on the solidarity of those around them, whereby the Mosaic agrarian constitution had the goal of equality for all tribal members, which was promoted by the prohibition of interest. The law does not repeal the fact that the strangers and people of different faiths they knew were usually traders from other areas, to whom the money was usually not lent in an emergency, but rather to increase it through business activities. Nevertheless, it has become commonplace for the creditor to ask for a share of the profit as interest.
Roman law
In the early days of the Roman Republic there were no regulations on the level of interest rates or on the limitation of usury. Since most borrowers had no collateral for loans other than themselves, many fell into debt bondage ( see main article: nexum ). The patricians abused their economic and social superiority and, with interest rates of 50 or 100%, sometimes more, drove more and more of the borrowing small farmers into bondage. The plebeians then fought their way around 450 BC. In the class struggle equality with the patricians. At the same time, the annual interest rate was limited to 10%. Claims above this were punished as usury, and more severely than theft. However, the law was ineffective. Since it only applied to Romans, the patricians interposed strangers as straw men. A loan agreement was also not ineffective in the event of a violation of the law, so that defaulting debtors continued to face debt bondage. This danger alone prevented most of them from seeking punishment for usurers. In times of need during the First Samnite War , the Lex Genucia in 342 BC The taking of interest was forbidden completely.
Although the ban was justified in peasant society, it could not hold up in the enlarged Roman Empire with its flourishing trade and monetary transactions. Instead of the strict formal and therefore clumsy nexum , the mutuum appeared . This was originally intended as an interest-free friendship loan, but was then used to circumvent the interest ban. As a result, the interest prohibition in practical business life was forgotten. It is reported that 89 BC. The praetor Aulus Sempronius Asellio was slain by believers when he tried to apply the old usury laws. Towards the end of the republic, a maximum interest rate of 1% per month was set for the mutuum . Actions based on this law were only possible under civil law.
Usury remained ubiquitous. Because of cheap grain imports, the local small farmers became impoverished and had to sell their farms to large landowners who ran cattle, oil and viticulture. The work on these latifundia was carried out by slaves, so that the former smallholders had to move to the city of Rome, where they, as poor proletarians, lived mostly on alms.
Owners of capital lent their money to provinces outside of Italy that were not subject to any interest rate restrictions. From the group of plebeians a new class of entrepreneurs formed, which realized quick profits with speculative and usurious deals. It was not considered dishonorable to exploit the provinces. Salamis, for example, received a loan from Marcus Junius Brutus at 48% interest per annum to pay his taxes to Rome. Through usury and tax leases , almost all money ended up in the hands of a few money aristocrats, who, however, did not use it economically, but used it primarily for election bribery, buying offices and luxury. The bulk of the population remained poor. Usury was responsible for the fact that Roman society consisted of a few very rich and predominantly without property. No middle class could develop.
Germanic law
According to the traditions of Tacitus, the early Teutons had no interest income and no usury. The word usury (Gothic works ) meant yield of the soil and the fruit. That changed when the Romans traded with them.
Canon Law
The early church fathers saw usury as subject to canonical punishment in interest income, because it exploited the weak and therefore violated the commandment of mercy and charity. They justified this with a passage from the Sermon on the Mount:
“If you lend to those from whom you hope to receive it again, what thanks do you have? For sinners also lend to sinners to get the same in return. Rather, love your enemies, do good without expecting anything in return. "
Although the Bible passage is ambiguous and could also mean not only lending to those who can also repay, in 325 at the First Council of Nicaea, a ban on interest for clergy was passed. At the time, these were the main lenders in the Roman Empire and therefore also the largest usurers. Pope Leo the Great extended the scope of this prohibition 443 to all believers. The regulation was also adopted by secular courts until it was more and more bypassed and no longer obeyed in the post-Carolingian period. After the turmoil of the Great Migration , the church tried to help the poorest through alms and stricter usury laws. To do this, however, she was dependent on the rent, tithes and taxes of her subordinates. The impoverished peasants could no longer pay these after the devastation caused by the Hungarians , Normans and Arabs , and the church was forced to take out loans itself, which were often only granted at exorbitant interest. To counter this, they renewed the ban on usury, which they found difficult to enforce at first. In the Council of Vienne in 1312 it was established that even the tolerance of interest income was heresy . However, since the church itself had to borrow money, it could not ban interest altogether. However, it stipulated what is allowed and what is forbidden usury. As a result, she not only protected herself and her power, but also saved many people from economic ruin.
For peasant society, a ban on interest was justified for the simple reason that money was a “tool” that was only lent in times of need, and there was social consensus that it was sufficient to return it “undamaged”. From the 16th century onwards, with increased commercial activity, where for the merchants money was a commodity like others with which they wanted to make a profit, various attempts were made to circumvent the ban. In order not to make itself untrustworthy, the church then allowed frequent evasions such as changing bills and buying pensions . In fact, the prohibition of interest was completely overridden in the following time by secular laws in which the rulers set maximum interest rates. The ecclesiastical ban, which had been riddled with holes for centuries, was meaningless in business life by the 19th century at the latest.
The prohibition of interest, which the Church never gave up, has not been mentioned in the Church Code ( Codex Iuris Canonici ) since 1913 . With this the Church has given up her fight against excesses of the capitalist system, with which the power of capital should be limited and work should be given its rights, from a canonical point of view.
Development of German Law
A legal conception of usury arose in German territory only in the wake of Christianization . At first, canon law applied . Since this did not apply to Jews , they became the first commercial moneylenders of the Middle Ages, also because they were not allowed to practice most of the other professions. The secular authorities supported them in this because they were dependent on credit, and on the other hand issued laws against the "usury of Jews". In the Reich Police Ordinances of 1548 and 1577, a maximum interest rate of 5% was set. The exception rules soon became common law. This development was further facilitated by the Reformation . While Martin Luther initially justified a “little need”, Johannes Calvin spoke out in favor of moderate interest. For him, wealth was a sign of being chosen by God, and he therefore saw no sign of a lack of mercy in increasing wealth.
Leading legal experts of the 16th and 17th centuries, such as Hugo Grotius and Claudius Salmasius, spoke out in favor of collecting interest. In 1654, a maximum interest rate of 5% applicable to everyone was set on the imperial pass. This created a new standard of usury. Usury was all above the set interest rate standard. The fixed interest rate corresponded to the absolutist principle of rule of the time, in which all power was exercised by the head and at the same time the state intervened to regulate all areas of life. From the middle of the 18th century, this system was criticized, and encouraged by the writings of David Hume and Anne Robert Jacques Turgot , flexible interest rates were demanded, which are based on economic conditions. Jeremy Bentham's thesis, who spoke out against usury laws, received a lot of attention , since in other contracts (for example sales contracts) it is not forbidden to take advantage of one's counterpart. However, he did not demand that this loophole be closed, but instead wanted to release the interest. Practical consequences were that at the time only in Austria the usury laws were repealed, while conservative forces prevented this in all other countries.
Only after the French Revolution and with the beginning of industrialization and the spreading ideas of economic liberalism were the statutory interest barriers lifted in all of Europe and in almost all German countries. An exception was Prussia , where the restrictions were only overridden in 1867 on the initiative of Eduard Lasker , after the North German Confederation had previously lifted all interest rate restrictions. The criminal prosecution of excess interest ended completely in 1871 with the Reich Criminal Code , which only forbade the exploitation of carelessness and inexperience by minors.
The consequences of this law had been warned many times, although the critics could feel confirmed by the later developments. Instead of a self-regulating market, the next few years saw the ruthless exploitation of economically and socially weaker people, where over-indebtedness and foreclosures were soon omnipresent on the agenda. Particularly affected were farmers, who were often unable to read or understand the relevant contracts with which they were defrauded after years with bad harvests due to bad weather after they had borrowed money to support their families. From 1879 new usury laws were discussed in Bavaria, Hesse and Prussia. On May 24, 1880, the Reichstag passed the law. Section 302a of the Criminal Code stipulated that exploitation of emergencies outside the legal framework can be punished with prison sentences of up to six months or fines. In the years that followed, the number of convicts fell from 98 in 1882 to 37 in 1885. In reality, however, only very few cases came before the judge, as a variety of evasion options soon became apparent and also because most debtors were afraid of going to court at all and thus to be socially exposed. The term usury was too narrow in everyday legal practice. It only related to advantages obtained directly through loans, so that purchase agreements for installments were not included. The judges also found it difficult to determine the scope of the “conspicuous disproportion” mentioned in the law. For this they lacked the economic knowledge - and also the will to acquire it.
anti-Semitism
Since Jews in the Middle Ages were locked out of land ownership and membership in guilds , they were forced into the fields of trade and banking. This made the usury of the money Jews a stereotype of anti-Semitism . Judas Iscariot , who is said to have betrayed Jesus Christ for thirty pieces of silver , later Shylock in William Shakespeare's Merchant of Venice or the Rothschild family was cited as evidence for the allegedly typically Jewish usury . In 1858 the French early socialist Pierre-Joseph Proudhon attributed a “mercantile and usurious parasitism ” to the Jews . Even in the Protocols of the Elders of Zion , a forgery that originated in 1903 and is supposed to prove an alleged Jewish world conspiracy , usury is mentioned as a central means of subjugating Christians to Jewish rule. The National Socialists took up this stereotype and used it as a justification for their murderous policies: the death penalty for usurers and smugglers was called for as early as the 25-point program of the NSDAP in 1920, which primarily meant Jews. In his program Mein Kampf of 1924/25, Adolf Hitler repeatedly referred to the alleged Jewish usury. He falsely claimed that the Jews had introduced interest lending in Germany in the first place, thus justifying the medieval pogroms against the Jews :
“His exorbitant interest is finally arousing resistance, but his other increasing impudence is indignation, his wealth is envy. […] His bloodsucking tyranny is so great. that there will be riots against him. You begin to look at the stranger more and more closely and discover new repulsive traits and characteristics in him until the gap becomes insurmountable. In times of bitter need, anger finally breaks out against him, and the plundered and ruined masses resort to self-help in order to fend off God's scourge. You have got to know him over the course of a few centuries and feel that his very existence is the same as the plague . "
In several of his Cantos , published in 1937, the American poet Ezra Pound polemicized against Usura ( Latin for usury), which he regarded as “cancer damage to the world” and described as typically Jewish. Jewish high finance would trigger wars, restrict the freedom of the press and influence university teaching, whereas only a strong state, as he recognized in the fascist Italy of Benito Mussolini , whom he admired , could do anything.
Legal position
Germany
civil right
In Germany, usury is regulated in Section 138 (2) BGB . A bilateral legal transaction is therefore void ,
- through which someone, exploiting the predicament, inexperience, lack of judgment or the considerable weakness of will of another, promises himself or a third party pecuniary benefits for a service that are noticeably disproportionate to the service.
It is therefore a legal objection , the legal transaction must be reversed according to the law of enrichment . The performance transaction in rem is also void because the law mentions not only promises but also granting. However, the performing business of the usury itself remains effective. (see wording "... or lets go ").
The narrow legal limits of usury are bridged by the fact that in legal transactions similar to usury, Section 138 (1) BGB ( immorality ) intervenes with the same legal consequences.
requirements
For usury to exist and the legal transaction to be ineffective, objective and subjective elements must be present.
On the objective side, there must be a “noticeable disparity” between performance and consideration. A comprehensive assessment of the individual case shows whether this condition is met. However, such a disproportion is usually present when the value of the consideration doubles that of the service. The market value when concluding the legal transaction is to be used.
In addition, there must be a special motivation of the overgrown, namely the "exploitation" as the conscious exploitation of the given bad situation of the overgrown; it is intent required. There is a predicament when the victim of usury considers entering into this business the lesser evil. ( Example: To avoid the impending foreclosure of their house, someone takes out a loan from a private individual that bears interest at 20 percent per month.) Inexperience is a lack of life or business experience . ( Example: An immigrant agrees to pay € 2,000 per month for a small one-room apartment because he or she is unfamiliar with the prices.) There is a lack of judgment when someone has a significant lack of the ability to conduct legal transactions to be guided by reasonable motives or to correctly assess the equivalence ratio of the mutual services. ( Example: A complicated insurance contract, which is clearly disadvantageous for them, is concluded with a person of low intelligence .) Significant weakness of will is to be understood as a reduced resistance (for example: addiction disease , such as alcoholism ).
Criminal law
Usury is also a criminal offense in Germany in certain cases . Section 291 of the Criminal Code provides for fines or imprisonment of up to three years for offenses committed by usury, and imprisonment of six months to ten years in particularly serious cases. Usury is an official offense .
Austria
requirements
In Austria, the offense of usury is regulated in § 879 ABGB . As a result, contracts are void
- if someone exploits the recklessness, predicament, weakness of understanding, inexperience or emotional excitement of another by promising himself or a third party a consideration for a service whose value is conspicuously disproportionate to the value of the service.
As an objective element of the offense, there must be a noticeable disproportion between performance and consideration. The subjective criterion of § 879 ABGB is realized through the exploitation of carelessness, predicament, weakness of understanding, inexperience or emotional excitement.
According to the more recent case law, however, even slight negligence on the part of the usurer should suffice
Legal consequences
Following the telos of § 879 ABGB, only the protected part should be able to invoke the ineffectiveness of the contract. It is a case of nullity to be asserted or also relative nullity. Consequently, only the overgrown, never the usurer, can invoke the existence of the fact of usury.
Switzerland
According to Art. 21 OR , a party can withdraw within one year from a contract that contains an obvious disproportion between performance and consideration. However, this is only possible if the other party has brought about the conclusion of the contract in addition to the apparent disproportion by exploiting the distress, inexperience or carelessness of the other .
Art. 157 StGB alsocriminalizes precisely this behavior. The law threatens a fine or five years' imprisonment; if the usurious disadvantage was exercised commercially, even for up to ten years.
Usury of interest is regulated separately in the federal law on consumer credit ( SR 221.214.1 ) in relation to consumer credits or leasing contracts . Higher maximum annual interest rates are also specified for overdrafts . In the associated ordinance ( SR 221.214.11 ), the Federal Council set the maximum annual interest based on the three-month Libor . The maximum annual interest is the sum of the three-month Libor plus 10 percentage points, but it is always a minimum of 10 percentage points. For overdrafts, the sum of the three-month Libor plus 12 percentage points applies, with a minimum of 12 percentage points.
See also
- Wage usury
- Rent exuberance
- Usury
- Loan shark
- Dardanariat
- Usury in the countryside in the 19th century
literature
- Katja Bauer: The Raiffeisen Cooperatives' contribution to overcoming usury. (= Cooperation and cooperative contributions from the Westphalian Wilhelms University of Münster. Volume 31). Dissertation. Münster 1993, ISBN 3-7923-0660-3 .
- Max Neumann: History of usury in Germany up to the foundation of today's interest laws (1654): illustrated from handwritten and printed sources . Publishing house of the bookstore of the orphanage, Halle 1865 (digitized version)
- Harald Siems : Trade and Usury as Reflected in Early Medieval Legal Sources . (= Monumenta Germaniae Historica . Writings. Volume 35). Hahn, Hannover 1992, ISBN 3-7752-5163-4 .
- Detlev Heinsius: The legal asset of usury. For the interpretation of § 302 a StGB . Lang, Frankfurt am Main et al. 1997, ISBN 3-631-31559-7 (also dissertation, Rostock 1996)
- Martin Maria Laufen: The usury (Section 291, Paragraph 1, Sentence 1 of the Criminal Code). Systematic classification and dogmatic structure. Dissertation. Lang, Frankfurt am Main et al. 2004, ISBN 3-631-52440-4 .
- Freddy Raphael: Sixth picture: The usurer. In: Julius H. Schoeps , Joachim Schlör (eds.): Images of hostility towards Jews. Anti-Semitism - Prejudices and Myths. Augsburg 1999, ISBN 3-8289-0734-2 , pp. 103-118.
- Jacques Le Goff : Usury and Infernal Torments: Economy and Religion in the Middle Ages. Translated from the French by Matthias Rüb . Klett-Cotta, 1988, ISBN 3-608-93127-9 .
Web links
Individual evidence
- ↑ Katja Bauer: The contribution of the Raiffeisen cooperatives to overcoming usury. 1993, ISBN 3-7923-0660-3 , p. 16.
- ↑ Katja Bauer, pp. 18/19.
- ↑ Katja Bauer, p. 20.
- ↑ Katja Bauer, pp. 20/21.
- ↑ Katja Bauer, p. 21 f.
- ↑ Katja Bauer, p. 35.
- ↑ Katja Bauer, pp. 22-25.
- ↑ Katja Bauer, pp. 32–35.
- ↑ Katja Bauer, p. 35.
- ↑ Katja Bauer, pp. 36/37.
- ↑ Katja Bauer, pp. 37–39.
- ↑ Katja Bauer, p. 39/40.
- ↑ Katja Bauer, pp. 41–44.
- ↑ Katja Bauer, pp. 71/72.
- ↑ Also on the following Clemens Escher: Wucherjude. In: Wolfgang Benz (Hrsg.): Handbuch des Antisemitismus . Volume 3: Concepts, ideologies, theories. De Gruyter Saur, Berlin 2008, ISBN 978-3-598-24074-4 , p. 348 f. (accessed via De Gruyter Online).
- ↑ Alexander Bein: The Jewish Parasite. In: Vierteljahrshefte für Zeitgeschichte. 13, Issue 2, 1965, p. 128. ( online , accessed January 30, 2016)
- ↑ Christian Hartmann , Thomas Vordermayer, Othmar Plöckinger, Roman Töppel (eds.): Hitler, Mein Kampf. A critical edition . Volume 1, Institute for Contemporary History Munich, Berlin / Munich 2016, p. 804.
- ↑ Hans-Christian Kirsch : Ezra Pound with self-testimonies and picture documents. rororo, Reinbek 1992, p. 92.
- ↑ Andreas Kletečka: General Part, Property Law, Family Law (= Rudolf Welser [Hrsg.]: Outline of civil law . Volume 1 ). Manz, Vienna 2014, ISBN 978-3-214-14710-5 , pp. 197 .
- ↑ OGH October 22, 2015, 1 Ob 141 / 15i
- ^ Stefan Perner , Martin Spitzer , Georg Kodek : Civil law . 4th edition. Manz, Vienna 2014, ISBN 978-3-214-11254-7 , pp. 84 f .
