Overdraft

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An overdraft ( English overdraft ) arises in banking for current accounts by orders ( cash payment , transfer , debit ) by either account balance or by existing overdraft ( overdraft ) not covered are.

General

The terms overdraft facility and overdraft facility are used inconsistently. The term overdraft is used in practice on the one hand for the mere tolerance of an overdraft, on the other hand the overdraft can also be contractually agreed, so that a repayment claim only arises after termination of this agreement.

Overdrafts represent a breach of contract because the bank customer is not entitled to unilaterally exceed credit lines agreed in the credit agreement or to cause debit balances without a credit line being available for this. If a bank customer acts without authorization, without waiting for the credit institution's positive credit decision , and thus procures unauthorized borrowing, there is always a breach of contract under credit agreement law.

Legal issues

Overdrafts are special forms of consumer loan contracts . A legal distinction must be made between the overdraft facility granted and the tolerated account overdraft . The legally relevant criterion for the distinction between the two is whether a loan agreement has already been concluded before the borrower draws a certain amount of money.

Granted overdraft facility

The overdraft facility granted is regulated in § 504 BGB. The credit line granted by the credit agreement represents the contractual maximum limit for the credit drawdown. However, if this credit limit is not sufficient, the borrower is obliged to notify the bank before this credit limit is exceeded and to agree on an overdraft with it. Banks are not contractually obliged to allow unauthorized disposals beyond the contractually agreed credit limit and can therefore reject further account disposals. The borrower should not undertake uncoordinated overdrafts of agreed credit limits in the expectation that the bank will tolerate these overdrafts. The unauthorized overstepping of contractually agreed limits represents a breach of the credit and giro agreement, which can result in extraordinary credit and even account termination (affects the entire business relationship ).

Exceeding a granted credit line also represents a toleration in the legal sense ( Section 505 (1) sentence 2 BGB). Since this is a consumer loan, §§ 491 ff. BGB are to be applied without restriction. The possibility of overdrafting beyond the agreed credit line is an atypical loan agreement because the contract usually only provides a credit line. Within this framework, the borrower is free to decide whether or not to actually access and use the loan or part of it. The legally relevant criterion for the delimitation is whether a loan agreement has already been concluded before the borrower draws a certain amount of money. This is guaranteed by the terms “grant rights” in Section 504 (1) BGB.

Significant overdraft

According to Section 504a (1) BGB, a significant overdraft exists if the borrower has made use of an overdraft option granted to him without interruption for a period of six months and on average in an amount that exceeds 75 percent of the agreed maximum amount. Then the credit institution has a duty to advise the borrower , which is to be submitted in text form by means of an advisory offer. Since overdrafts cause relatively high capital costs due to the overdraft interest , credit institutions have to offer the borrower more cost-effective financial products .

Tolerated overdraft

A "tolerated account overdraft" exists according to § 505 BGB if the credit balance or an expressly granted credit line is insufficient for disposals, but the disposals are nevertheless carried out by the credit institution without a prior agreement. In the case of “tolerated overdrafts”, the special case of “significant overdrafts” ( Section 505 (2) BGB) is also regulated, which triggers special information obligations on the part of credit institutions. A tolerated overdraft for an overdraft period of more than one month is considered significant. According to the justification of the law, the relevance is to be assessed on the specific individual case and also includes aspects relating to the amount. The lower the the in a given period consumers credited to the current account amounts are, the faster the overdraft was "significant". It therefore depends on the specific contractual relationship between the consumer and the bank. In assessing the relevance, it was irrelevant whether the consumer had other sources of money and how quickly he could repay the overdraft.

However, the merely tolerated overdraft does not entitle the account holder to payment or to tolerate further overdrafts. On the other hand, the credit institution can demand the immediate repayment of a tolerated overdraft without having to wait for the next financial statement . Therefore, it can generally be assumed that tolerated overdrafts will only be accepted by credit institutions for a short period of time. So-called “internal” credit lines that are not officially communicated to the bank customer have no external impact and also do not justify any right to tolerate an overdraft.

In the case of the “tolerated” overdraft, there is no loan agreement, but this only comes into effect when the loan is disbursed as a “hand loan”. A tolerated overdraft within the meaning of Section 505, Paragraph 1, Clause 1 of the German Civil Code (BGB) exists if a credit institution tolerates an overdraft of the account against payment in a consumer contract on a current account without an overdraft option. The only requirement for Section 505 of the German Civil Code is therefore a framework agreement (giro contract) between the bank and the consumer on a "current account". In this framework agreement, at least the possibility of exceeding the balance against debit interest must be provided, whereby the account holder must be informed about the debit interest rate and other costs. When this information is given (before, during or after the conclusion of the giro contract), is irrelevant according to § 505 BGB. In any case, it must have been issued before the first tolerated overdraft, otherwise the legal consequences of Section 505, Paragraph 3 of the German Civil Code (BGB) apply (no interest and cost claims by the bank). Paragraph 1 relates to the case that in a giro contract between the institute and the consumer the bank is granted a claim to payment if it tolerates an overdraft that has not been agreed (sentence 1) or not so high (sentence 2). A consumer loan contract is implicitly concluded through the tolerated overdraft (§ 505 Paragraph 2 and 4 BGB).

Tolerated overdrafts occur predominantly with consumers who are not given an overdraft option; this is often the case with economically weaker people. This is precisely why the legislature ensures a high level of protection in these contracts, at least in the area of ​​delayed repayments. The § 497 BGB (default) and § 498 BGB (termination in case of default) are therefore to be applied, as well as the general provisions of §§ 488 to 490 BGB.

Banking law

After Kapitaladäquanzverordnung (CRR) 178, para. 2 CRR past due commence overdrafts under Art. With the day on which the borrower an advised limit ( english advised limit has been exceeded), a lower limit has been reported as current outstandings him or he has drawn on an unapproved loan and the underlying amount is significant.

Special case "hidden overdraft"

This complex matter, for the "average informed and well-informed consumer who pays the appropriate attention to the situation", is related to the fact that the individual account transactions of a current account can develop quite different interest effects due to their value dates, which, however, are not immediately recognizable in the balance for the account holder got to. It therefore happens that the account holder has alleged account balances for which no interest has yet occurred in whole or in part and which therefore overdraws his account when another disposal is made. This has to do with the type of balance that needs to be briefly discussed.

"Value date balance" or "Value date balance"

The current balance or "value date balance" includes all account movements that are associated with an interest effect up to the day the balance is determined, i.e. it does not take into account any postings with a later value date such as check and direct debit entries or open securities, foreign exchange or precious metal settlements, the interest effect only occurs later. This "value date balance" is the balance with which the account holder has to calculate when making dispositions.

Book balance

In everyday language, the balance, which includes all postings regardless of their interest effect, is often referred to as the book balance or account balance. This balance includes all existing account transactions, even if they do not yet have an interest effect. This means that all account transactions are booked, even if their value date (value date) occurs later. The interest effect occurs when the value date is reached.

Misleading balance information

The above distinction between the types of balances shows the complexity of this topic, which is difficult for the average bank customer to understand. If a balance is displayed in online banking or at an ATM , the customer may assume, according to recent case law, that he can dispose of it immediately if there is a credit balance. In 2002, the BGH had a case for decision in which a pensioner received an account balance information on her current (book) balance on September 29th, which already contained her future pension credit with the value date October 1st. In this regard, the BGH ruled that it was inadmissible for the bank to display the book balance at the ATM. This leads to the fact that the customer withdraws funds that are credited to the account according to the booking but not according to the value date. In doing so, the credit institutions violated their contractual obligations under a giro contract if they provided account holders with incorrect information about the status of their giro accounts on account balance inquiries at the ATM in the last few days of the month ( Sections 676 et seq. , Section 675 Paragraph 1 BGB in conjunction with V. m. § 666 BGB). This misleading customers can be avoided without further ado, either by providing information or by (partially) doing without the additional customer service of automated information about the account balance. According to the BGH, the account balance information at the ATM is set up by showing pension payments as credit before their value date in such a way that a large number of customers can be misled when checking their account balance. This account balance information could induce customers to avail themselves of credit services from banks through unwanted account overdrafts which they would not have used if the account balance was correct. In continuation of this case law, the Federal Court of Justice decided in 2007 that account statements are also misleading if the account balance also contains non-“valued” amounts that cannot be accessed without debiting interest until the value date , even if the individual account transactions are show different value dates.

Deviations between the booking date and the value date, which cannot be taken directly from the daily balance shown, often occur in mass payment transactions. However, the BGH further states that the account balance indicated is not incorrect. This is because it accurately reflects the daily credit available to the customer, which is to be distinguished from the intermediate balances that are relevant for calculating the interest. Objectively correct information can, however, be misleading if a considerable number of the account holders addressed associate it with an incorrect idea.

In the opinion of the BGH, in any case, a significant part of the bank customers do not recognize the difference between the available account balance and interest-free available credit due to the lack of a corresponding note, so that these customers have incorrect ideas about the extent to which they can dispose of without interest.

Due to this case law, the credit institutions have largely stopped disclosing the book balance or are no longer charging debit interest for these "hidden overdrafts". They are called hidden overdrafts because they are not immediately recognizable to the average bank customer.

effect

In the case of the contractually agreed current account or overdraft facility, the payment by the bank is preceded by the bank customer's declaration of acceptance by calling up the previously granted loan, so that the account holder is entitled to the payment of the called-up amount for at least a short time. The mere tolerance of an account overdraft, however, does not give the customer a claim to credit against the bank, but only has a chance to tolerate the overdraft until it is paid out. Merely tolerated overdrafts therefore do not give account holders any planning security and should be converted into contractually agreed overdrafts or overdrafts.

Existing overruns solve a usually considerably higher than the nominal interest rate lying overdraft interest from, the amount of which depend on the extent and / or duration of the overdraft can. The overdraft interest is undisputed in specialist literature and jurisprudence , only bank charges that are independent of the term, such as processing fees, are not permitted.

economic aspects

Account overdrafts are considered a negative feature of rating ( companies ) and credit scoring ( private individuals ), because they are to be viewed as an indicator of poor liquidity planning or private liquidity calculation and an increased credit risk . Overdrafts are therefore only economically justifiable in exceptional cases if they are required in the short term and a loan agreement cannot therefore be concluded in the short term, but income at least in the amount of the overdraft can be expected in the future . Under no circumstances should overdrafts be misused to finance consumption or investment . Overdrafts are very expensive because of the disproportionate overdraft interest, so that the borrower has to weigh up whether to apply for a loan to increase the overdraft facility or other types of credit . The disproportionately high overdraft interest also leads - with interest capitalization - to exponential growth in the debit balance.

According to statistics, there were 98.55 million current accounts in Germany in 2013, of which 75% contained an overdraft facility, 8.8% of the account holders overdrawn permanently, 8.5% every month and 6.5% overdrawn for more than 6 months and in the amount of over 75% of the overdraft facility granted.

International

Internationally, the overdraft ( English bank overdraft ) is unknown in this sense. Borrowing needs at any time within existing credit lines ( English overdraft limits ) move. Overdrafts beyond existing credit lines would therefore be viewed by the lender as an increased credit risk because the borrower is obviously unable to draw up a forward-looking financial plan that also takes unexpected liquidity bottlenecks into account. As overdrafts ( English overdraft facilities ) are credit lines combined to individuals and companies that are to cover the short-term credit needs.

Anyone who has unexpected liquidity bottlenecks as a private person must dispose of them within the existing credit card limits . In companies, the revolving credit facility is similar to the current account credit , in which a contractually agreed credit line can be used repeatedly, but a credit balance may not arise. The stand-by facility , which is usually not used, serves merely to secure liquidity . Overdrafts these limits provide a breach of contract ( English breach of contract is) that the credit termination by the lender justified.

Individual evidence

  1. ↑ Thomas von Plehwe, Dispositionskredit , in: Peter Derleder / Kai-Oliver Knops / Heinz Georg Bamberger (eds.), Handbook on German and European Banking Law , 2004, § 19 Rn. 2
  2. ↑ BGHZ 138, 40 , 47
  3. ↑ Thomas von Plehwe, Dispositionskredit , in: Peter Derleder / Kai-Oliver Knops / Heinz Georg Bamberger (eds.), Handbook on German and European Banking Law , 2004, § 19 Rn. 5
  4. ↑ BT-Drs. 16/11643 of January 21, 2009, draft of a law to implement the Consumer Credit Directive, the civil law part of the Payment Services Directive and the reorganization of the provisions on the right of withdrawal and return , p. 80
  5. ↑ BT-Drs. 16/11643 of January 21, 2009, draft of a law to implement the Consumer Credit Directive, the civil law part of the Payment Services Directive and the reorganization of the provisions on the right of withdrawal and return, p. 89
  6. ↑ Peter Derleder / Kai-Oliver Knops / Heinz G. Bamberger, Handbook on German and European Banking Law , 2003, p. 401
  7. ↑ a b c BT-Drs. 16/11643 of January 21, 2009, draft of a law to implement the Consumer Credit Directive, the civil law part of the Payment Services Directive and to reorganize the provisions on the right of withdrawal and return , p. 90 ff.
  8. ↑ No. 18 AGB Sparkassen.
  9. ↑ According to Art. 247, Section 17, Paragraph 2 of the EGBGB, the consumer must be informed about the existence and amount of an overdraft, the borrowing rate and any contractual penalties, costs and default interest.
  10. ↑ BGH, judgment of January 24, 1985 ( Memento of September 19, 2010 in the Internet Archive ), Az. IX ZR 65/84, full text = BGHZ 93, 315, 325.
  11. ↑ BGH, judgment of January 29, 1979 , Az. II ZR 148/77, full text = BGHZ 73, 207, 209.
  12. ↑ Peter Derleder / Kai-Oliver Knops / Heinz G. Bamberger, Handbook on German and European Banking Law , 2003, p. 399, ISBN 3540009442
  13. ↑ Munich Commentary / Jan Schürnbrand, BGB Commentary , 5th edition 2007, § 493 Rn. 36.
  14. ^ BGH, judgment of October 2, 2003 , Az.I ZR 150/01, full text = BGHZ 156, 250, 252.
  15. ^ BGH, judgment of June 27, 2002 , Az. I ZR 86/00, full text.
  16. ^ BGH, judgment of January 11, 2007 , Az. I ZR 87/04, full text.
  17. ↑ Both of the above judgments come from the Competition Senate of the BGH because it was about misleading according to § 3 UWG and not from the Senate, which is responsible for banking law.
  18. ^ BGH, judgment of October 23, 1997 , Az. I ZR 98/95 = GRUR 1998, 1043, 1044.
  19. ↑ a b BGH, judgment of January 11, 2007 , Az. IX ZR 31/05, full text.
  20. ↑ BGH, judgment of October 25, 2016, Az .: XI ZR 387/15 and XI ZR 9/15
  21. ↑ BT-Drs. 18/5922 of September 7, 2015, draft law for the implementation of the residential real estate credit directive , p. 68
  22. ^ Brian Coyle, Bank Finance , 2002, p. 27
  23. ↑ Günter Wöhe / Jürgen Bilstein / Dietmar Ernst / Joachim Häcker, Basic Features of Corporate Financing , 2009, p. 243