Over-security (civil law)
About backup is in civil law the striking disparity between the realizable value of collateral called and the secured claim.
General
If the creditworthiness of the borrower is weak, but still acceptable , the credit institutions require collateral to secure their loans. In doing so, they have to assess the value of the loan collateral offered, which they can achieve in the event of a later realization. The aim of this valuation is to determine whether the future sales proceeds will be sufficient to fully cover the remaining outstanding amount. This is not always easy, because collateral is subject to fluctuations in value over time and, as a rule, less income is generated in the case of forced sale than in the case of a regular sale. Loans and the value of the collateral must be in an appropriate relationship to one another. Standard bank discounts (“ lending limits ”) are generally accepted by case law, because valuation risks and uncertainties must be adequately taken into account. The prohibition of overcollateralisation already follows from the nature of the security agreement and its underlying trust relationship.
Overcollateralisation as a disadvantage for the protection provider
Security agreements, in which, however, the appropriate relationship is lacking, hinder the security seller in the free use of his free assets and thus impair his economic freedom of movement vis-à-vis suppliers and other lenders. However, one should only speak of overcollateralization if and to the extent that the value of the security determined in a certain way exceeds the secured credit claims. A disproportion between security and secured claim only exists if the realization of the security leads to substantial excess proceeds. Otherwise, there is only a nominal excess coverage, which is based on the fact that the nominal value of a security is at most a rough indication of the proceeds in the event of a security.
Accessory and non-accessory loan collateral
When it comes to the question of the adequacy of the loan collateral, the legal nature of the type of collateral plays a role. In general, a distinction is made between accessory loan collateral such as surety , pledging , mortgage and, since 2008, to a certain extent also the security land charge and non-accessory (so-called abstract) loan collateral such as security assignment , transfer of ownership and guarantee . In the case of ancillary loan collateral, there is such a close legal link between the claim and the collateral, which prevents subsequent over-collateralisation. According to the law, there is an automatic retransmission of these securities: the liability of the surety is based on the respective existence of a credit claim ( Section 767 (1) sentence 1 BGB), so that the amount of the guarantee depends on the amount of the loan. This is not the case with abstract securities (so-called security trust). In order to avoid subsequent overcollateralization, the BGH had requested the credit institutions to agree release clauses. He gave up this case law in 1996. The form-based orders for abstract securities are now effective even if they do not contain any express or discretionary release regulations. Even inadequately designed release clauses no longer lead to total nullity according to the new case law.
Original overcollateralization
An original over-collateralisation exists if it is already clear when the security contract is concluded that a noticeable disproportion between the realizable value of the collateral and the secured claim will exist in the event of a later realization. Rather, what is decisive is the realizable value according to the uncertain market conditions in the event of the debtor's insolvency. This value can only be determined on the basis of the particularities of the individual case. Such inadequate overcollateralization exists if the realizable collateral value of revolving global collateral (area security transfer and shell / global assignment) permanently exceeds the loan amount by more than 10% in the event of liquidation. The overcollateralisation must also be based on a reprehensible attitude of the collateral taker. This can be assumed "if the collateral taker shows, for selfish reasons, a recklessness towards the legitimate interests of the collateral provider, which is intolerable by moral standards." The original over-collateralisation makes the collateral agreement immoral and null and void (see invalidity ) if it is in Time of its conclusion according to its overall character - which can be inferred from the summary of content, motivation and purpose - is incompatible with good morals. Even more, taking in the majority of a customer's assets is considered to be over-collateralization, because the borrower has been deprived of any room for maneuver, for example for borrowing from other creditors ( gagging ).
Subsequent over-security
The overcollateralisation occurs here through the repayment of the loans, whereby the value of the collateral initially remains constant. Even in the case of loan repayments, however, the appropriate ratio to the value of the collateral must be maintained at all times, otherwise subsequent overcollateralization occurs. In particular, assignment, transfer by way of security and guarantee are subject to this risk as non-accessory securities due to the lack of automatic retransmission. Here, the extent of the overcollateralisation must clearly exceed the 150% limit. The realizable value of the loan collateral thus reaches 2/3 of its nominal value, which the BGH bases on the regulation of § 237 sentence 1 BGB. This limit regularly applies to subsequent overcollateralisation. However, if it is significantly exceeded, it does not result in nullity as in the case of the initial overcollateralisation, but triggers a release claim by the collateral provider.
Changed case law
The issue of over-insurance has often occupied the various senates of the BGH. The fundamental controversy was initiated by a decision of the 8th Civil Senate of the Federal Court of Justice in 1992, but it took place at the VII., IX. and XI. Civil Senate led to diverging legal opinions. Ultimately, the IX. Civil Senate with decision of March 6, 1997 and the XI. Civil Senate appealed to the Grand Civil Senate of the Federal Court of Justice on May 13, 1997. This has advocated a fixed coverage limit (110%) and flexible assessment parameters (based on realizable security values). However, since flexible evaluation parameters could render the release claim practically worthless because of the need to obtain a costly and time-consuming expert opinion in every dispute, the Grand Senate wants to help the guarantor with a presumption and burden of proof regulation based on § 237 BGB, according to which the release obligation is regularly at 150% the estimated value of the collateral and the nominal value of the collateral claims.
According to the new case law of the BGH, a global assignment based on a form contract is also effective if it does not contain any express or discretionary release regulation. The lack of such a clause does not put the security provider at a disadvantage because the fiduciary legal nature of security agreements on non-accessory (abstract) security implies the lender's obligation to release security if and to the extent that it is no longer required. If the security contract contains clauses by which the release claim is excluded or restricted, although the security purpose of the transfer has been completed in whole or in part, in case of doubt these represent an unreasonable disadvantage in accordance with Section 307 (1) BGB. Even if its enforceability is unreasonable If this is made more difficult, a disadvantage can be affirmed. However, this only leads to the ineffectiveness of the clauses concerned ( Section 306 (1) BGB). If something different is agreed in the security contract, this agreement is ineffective according to § 307 Paragraph 1 BGB; In their place, according to Section 306, Paragraph 2 of the German Civil Code (BGB), the above-mentioned release claim takes effect.
Release clauses of the general terms and conditions of the credit institutions
The general terms and conditions of the credit institutions contain release clauses formulated on the basis of the BGH case law, which are intended to prevent subsequent overcollateralization. If the realizable value of all loan collateral does not only temporarily exceed the coverage limit by 10%, there is a presumption of overcollateralization if the market value or the production costs are more than 150% above the nominal amount of the secured claims. In such a case, the credit institutions undertake to release collateral at the customer's request, at their discretion, in the amount exceeding the agreed coverage limit; When selecting the collateral to be released, they will take into account the legitimate interests of the borrower and a third party who has provided collateral for the borrower's liabilities. In this context, the banks are also obliged to transfer orders from customers about the assets subject to the lien, such as B. Selling securities, paying out savings balances (No. 16 II AGB Banks; No. 22 II AGB Sparkassen).
Individual evidence
- ↑ BGH WM 1998, 248
- ↑ Derleder, Knops, Bamberger: Handbook on German and European banking law . 2003, p. 59 ff.
- ↑ BGH NJW 1996, 2092 (2093)
- ↑ BGH NJW 1998, 2047
- ^ BGH WM 1998, 227
- ↑ BGH NJW 1998, 2047
- ↑ BGH NJW 1998, 2047
- ↑ BGH WM 1998, 234 under (bb) (2)
- ↑ printed in ZIP 1997, 632
- ↑ printed in WM 1997, 1197
- ↑ BGH WM 1998, 234 under (bb) (2)
- ↑ BGH NJW 1996, 2092 (2093); 2924
- ↑ BGH NJW 1998, 671
literature
- Peter Derleder, Kai-Oliver Knops, Heinz G. Bamberger: Handbook on German and European banking law . 2nd Edition. Springer, Berlin 2009, ISBN 978-3-540-76644-5 .
- Jan Wilhelm: Property law . 3. Edition. De Gruyter, Berlin 2007, ISBN 3-89949-325-7 .
- Andreas Trapp: Practical effects of parting with the qualified release clause in global assignments . In: New legal weekly . 1996, p. 2914 .
