General terms and conditions of the credit institutions
General terms and conditions for credit institutions are the general terms and conditions that form the basis of the business relationship between a credit institution and its customers (so-called general bank contract). Even if, in principle, each credit institution is allowed to formulate its own terms and conditions, the banks in Germany adhere to the terms and conditions proposed by the individual banking groups . The terms and conditions of the savings banks ( AGB-Sparkassen ) consist of 28 digits , those of the private banks and the cooperative banks ( AGB-Banken ) of 20 digits.
General terms and conditions (GTC) are widespread and in many areas of the economy fulfill the important function of creating a reliable legal basis for a wide variety of business transactions and ensuring uniform rules. To protect the customers of many economic sectors from abuse by unreasonable adverse treatment by us and that it is at first an independent on 1 April 1977 Conditions Act came into force, which substantially since January 1, 2002 in the § § 305 et seq. BGB was taken over . The statutory provisions serve the legal and economic protection of the consumer in business and contractual relationships with companies that use pre-formulated or specified clauses in standardized contracts with their customers (so-called " small print "). In particular, the law is intended to protect the legally and economically inferior customers from being taken by surprise by the technically superior users. It only intervenes in private autonomy where there is obviously an abuse of market or bargaining power.
Credit is also an important area of application. The general terms and conditions are supplemented by numerous special conditions that are only valid for certain types of business or very special business areas, such as conditions for renting safe deposit boxes , conditions for escrow accounts and other custody accounts for lawyers , notaries , etc., conditions for accepting custody items, for the use of the day and night safe, special conditions for paperless data exchange, conditions for check transactions, special conditions for the EC service , special conditions for foreign transactions in securities, etc.
As the definition above shows, the general terms and conditions of the credit institutions are by no means identical. Each institute association has recommended separate terms and conditions for its affiliated credit institutions, so that there are terms and conditions of the savings banks, private banks or cooperative banks that differ from one another in terms of detail.
The general terms and conditions of the individual institute associations, which are not identical in content, provide general rules for the business relationship between bank and customer. These provisions do not have to be repeated in detail in the case of a specific banking transaction or a bank contract, but apply through the clearly visible indication that the terms and conditions are made part of the contract and recognized by the customer. Derived from the general norm of Section 305 (1) BGB, the general terms and conditions of the credit institutions are pre-formulated contractual conditions that are provided by the banks to the bank customers when a bank contract is concluded for a large number of different bank contracts.
The following topics are dealt with in the general terms and conditions (general bank contract):
- Basics: relationship of trust between bank and customer with reference to banking secrecy , reference to general and special conditions;
- Bank information , powers of representation and disposal ( power of attorney ), certificates of identification;
- Choice of law / place of jurisdiction / place of performance ;
- Current accounts / adjustment entries / accounts , credits and payments of items for collection, deposits;
- Fees / costs / expenses ;
- Duties and liability between the bank and the customer, the customer's duties of cooperation and due diligence;
- AGB- lien / subsequent collateral / release of collateral; Dissolution of the business relationship / termination rights;
- Note on deposit insurance .
These general regulations are supplemented by the specific agreements that must be made for individual banking contracts. These specific bank contracts (e.g. giro contract , deposit contract, loan agreement , ordering of loan collateral ) are also general terms and conditions, unless they have been individually negotiated with the bank customer. The legal term of the terms and conditions is therefore broader than the colloquial term, which is mostly restricted to the "small print".
Adaptation of the general terms and conditions of the credit institutions to the case law
As in all other industries, the Federal Court of Justice criticized individual passages of the AGB banks in a large number of judgments before the AGB law came into force or even declared them to be ineffective. Since the General Terms and Conditions Act came into force in 1977, the number of judicial reviews of the General Terms and Conditions has risen sharply. The banking institutions have adapted their terms and conditions accordingly to the respective legal situation. The last revision of the General Terms and Conditions dates from January 1, 2002. In the following, an attempt is made to systematise the applicable case law on the General Terms and Conditions for essential areas of regulation.
Content of the contract
In the event of a dispute, they are particularly subject to judicial content control
- the general terms and conditions of the credit institutions
- all bank forms
- all standardized, standardized specific bank contracts (such as loan or credit agreements) of the credit institutions, even if they are written or filled out with a PC.
Even if all contractual conditions (such as a loan agreement including the provision of collateral) have been individually negotiated between the bank and the borrower, the statutory provisions apply because the other general terms and conditions of the banks are regularly included as part of the contract.
Group of people
The group of people protected by law mainly includes non-merchants (i.e. private individuals) and commercial partnerships . In some areas ( § 305c and § 307 BGB, especially in the case of inappropriate discrimination), the law also protects all companies regardless of their legal form. Even if a bank contract has been notarized, the also notarized form contracts are subject to judicial content control. This means that the land charge deeds or assignments / pledges of shareholder shares on which a notarial certification is based must meet the legal requirements, although the notary is obliged to provide advice and clarification (§ § 13 ff. BeurkG ).
Critical regulations for credit institutions
Specific bank contracts such as credit and security contracts are wholly or partially ineffective, especially if
- there is no explicit reference to the inclusion of the terms and conditions or there is no clearly visible notice in the cash register or the customer does not agree to their validity ( Section 305 (2) BGB);
- the formulations are incomprehensible to the attentive average customer or whose implications only a lawyer understands;
- surprising clauses exist ( § 305c BGB);
- Individual contractual agreements (including oral ones) that are more favorable for the bank customer have been made and these contradict the General Terms and Conditions (priority of the individual agreement according to Section 305b BGB);
- individual passages or the entire contract unreasonably disadvantage the customer ( § 307 BGB).
Formulations of loan and security agreements:
The institutes use legally secured standard formulations that are adapted to the specific individual case. Forms, in particular forms relating to loan collateral, are used without exception and must take into account the individual characteristics of the individual case. Overall, the contracts must meet the expectations raised in the preliminary discussions with the borrowers and withstand a possible judicial review of the content. In general, the general terms and conditions banks and bank forms are to be interpreted in accordance with the established case law of the Federal Court of Justice (BGH) in the way that an average bank customer should understand with reasonable appreciation, careful review and consideration of the recognizable context. It depends on the understanding of a bank customer without special knowledge of banking law and thus also on his interest.
Judicial interpretation of bank contracts
The case law of the BGH requires the courts of instance to examine the following criteria when interpreting banking contracts:
- Wording of the contract,
- typical interests of both parties,
- systematic position of the controversial clause in the contract,
- economic sense and purpose of the content of the contract.
Detailed questions in banking
The extensive and sometimes very media-effective case law, in particular on § 305c and § 307 BGB, has identified the following problem areas occurring in banking law practice:
Before bank contracts are formulated in writing, preliminary negotiations are often held with bank customers, the result of which is to form the basis of the contracts. These preliminary negotiations can justify certain expectations of the bank customer, on which the BGH commented as follows: “ The expectations of the contractual partner are determined by general and individual circumstances accompanying the conclusion of the contract. The former include the degree of deviation from the dispositive statutory law and the customary structure for the business group, the latter the course and content of the contract negotiations as well as the external design of the contract. The focus is not on the knowledge of the specific contractual partner, nor on the understanding of a specialist, in particular a lawyer, who has dealt in detail with the relevant general terms and conditions. Rather, what is decisive is the ability to understand the average customer typically expected in contracts of the regulated type. "
In these preliminary negotiations, the banks must not leave the impression, especially among non-traders, that the acceptance of loan collateral is only necessary for formal reasons. Verbal trivialization of the provision of collateral or joint liability is not permitted. In the case of specific customer questions, the banks may not provide any information that belittles the guarantee / joint liability risk or mislead the future surety / jointly liable party about the possible risk of liability. Furthermore, the results achieved in the negotiations with the security provider must actually be reflected in the contracts later (otherwise surprise effect according to § 305c BGB;). There must be no contradiction between the expectations aroused before the conclusion of the contract and the subsequent actual content of the contract.
Surprise and ambiguity
All the unusual passages that a bank customer should not reasonably expect under the circumstances are surprising. The expectations of the contract partner are determined by general and individual circumstances. The former include, for example, the degree of deviation from dispositive statutory law as well as the structure customary for the business community (banking), the latter the process and content of the contract negotiations and the external design of the contract. The assumption of personal liability declared by the wife of the land debtor, as far as claims against her are concerned, is not surprising. The texts used must be understandable for the attentive average customer and adapted to the customer's level of training (banking and financial experience). Passages that are not / incorrectly or incompletely filled out or alternatives left open in forms are considered to be ambiguity. When concluding form contracts, the bank must ensure that the legal and factual circumstances are clear.
Since u. a. § § 307 ff. BGB also apply in commercial transactions with companies, the inappropriate collateral subsumed by the BGH under § 307 BGB is subject to judicial content control for all borrowers. The rulings of the BGH on November 29, 1989 and March 19, 1992 raised the issue of immoral over-security. Blanket and space-security transfer security are species in which one over-collateralization may enter through ever possible increase of Sicherungsguts with unchanged loan amount. While the original over-security is a case of immorality , the subsequent over-security is legally treated by the BGH as an unreasonable disadvantage within the framework of § 307 BGB. In particular, assignment and transfer by way of security as non-accessory securities are subject to this risk due to the lack of automatic retransmission. In the case of global collateral ordered on a form, the collateral provider has a discretionary release claim in the event of a subsequent overcollateralisation even if the security contract contains no release clause or a discretionary release clause. In the case of global backups ordered using a form, neither an express release regulation nor a numerically determined coverage limit nor a clause for the evaluation of the objects of security are validity requirements. If the contract does not contain any express or an inadequate coverage limit, this limit, based on the realizable value of the collateral, is 110% of the secured claim.
Individual agreements take precedence over terms and conditions and forms used ( Section 305b BGB). Therefore, bank customers must ensure that their legal position is not weakened by restrictive verbal or later written modifications to the original content of the contract. Individual agreements have priority over the agreed terms and conditions.
General safeguard clause
The scope of a general security clause - also known as a broad security purpose declaration - is not recognizable for the average customer. If natural persons or companies act as mere providers of security, only a special security clause can be agreed in the security contracts for the loan that was the reason for the security provision. A general security clause is only effective if the mere collateral provider is a company or the mere collateral provider can influence the type and scope of the main claims (managing director or majority shareholder of the borrowing company). For a company familiar with lending business, the extension of the security purpose to future credit claims, which has long been customary in banking, is not unusual even if the security is provided to secure third-party debts.
Protection seller is not a borrower
Security contracts and security agreements with private security providers (who are not also borrowers) cannot be combined with the general security clause; it then has the effect of a special safeguard clause only for the individual loan that gave rise to the provision of collateral. This applies to all types of collateral, in particular to guarantees or other joint liability of private individuals. The collateral provider only provides the collateral for this loan because the collateral provider cannot influence the type and scope of the loan itself. However, Section 305c of the German Civil Code (BGB) does not apply if the security provider has been individually advised of the extension of liability in rem in the course of the negotiations, has agreed in advance in writing to the extension of liability for his security or as the majority shareholder or managing director of a borrowing GmbH / full liability of a borrowing KG or OHG the bank provides collateral.
Interest / fees / costs
A large number of rulings by the BGH deal with the type, calculation and amount of interest / fees / costs that are charged to the bank customer. The BGH warns that credit institutions should not unilaterally re-set prices and interest at the expense of consumers. Changes must be traceable. In addition, in the opinion of the chief judges, it is inadmissible to charge fees for services to which the banks are already obliged. Interest / fees / costs were often the subject of BGH rulings because, in the opinion of the BGH, their type, calculation and amount violate the transparency requirement of Section 307 (1) sentence 2 BGB. The credit institutions may not describe the legal situation incorrectly or unclearly in their forms and contracts and thus not prevent bank customers from asserting their legitimate claims.
One consequence of the case law is that in some cases bank charges may not be calculated according to the polluter pays principle . Charging fees for cash deposits and cash withdrawals from and to one's own current account is prohibited, costs for the return of direct debits and checks are ineffective due to insufficient funds, nor is the charge for issuing a cancellation authorization after credit repayment is not permitted. Fees for changing and managing exemption orders may also not be charged. Interest rate change clauses in the form of a savings contract are void according to § 308 No. 4 BGB (according to which the agreement of a right to change services of the clause is ineffective if the agreement of the change or deviation is not reasonable for the other part of the contract, taking into account the interests of the user). Fictitious interest calculation factors can only be accepted if the interests of the customer are taken into account in an appropriate manner - for example by specifying the effective interest rate.
Value date clauses do not regulate the amount of the interest, but the point in time at which the account movement is included in the respective interim balance for calculating the interest; With cash payments into the account, right of the customer against the bank arise with the payment - not with the credit or the value date. The bank will only fully comply with its contractual obligation under the giro contract if it has also timed the transfer amount, i.e. H. corrects the value in the current account. Because only with the value date, i. H. the determination of the calendar day for which the transfer amount is included in the (interim) balance of the current account, which is decisive for the interest calculation, the amount can affect interest. An exception to this applies, however, to credits for submitted checks, which are made subject to the check cashing.
Regulations on a prepayment penalty to be paid in the event of early loan repayment may not be compatible both surprisingly ( § 305c BGB) and with the transparency requirement to be observed in the context of a content check ( § 307 BGB). Clauses in the general terms and conditions of the savings banks that allow the calculation of fees “according to the market situation” and “equitable discretion” are also void. The clause unreasonably disadvantages customers.
New terms and conditions
The constant, often restrictive case law of the BGH on the terms and conditions of the credit institutions has led to their complete revision. The General Terms and Conditions applicable from January 1, 2002 only contain clauses that should largely withstand future case law. The most important thing here is the extension of bank liability to even minor negligence. Some regulations that have restricted customer rights too much have been waived. Special conditions for individual business areas have been removed from the GTC and are offered as separate conditions.
- General terms and conditions banks in their currently valid version
- You don't have to pay that . In: Spiegel Online - Article still deals with the old legal situation before the implementation of the Payment Services Directive (PDF)
- Andreas Gerken: Inclusion of general terms and conditions in contracts . Department of Economics at the Hochsch. Bremen, Bremen 2002, ISBN 3-922892-65-5 .
- Hans-Jörg Stadler: General terms and conditions in international trade . Verlag Recht und Wirtschaft, Heidelberg 2003, ISBN 3-8005-1326-9 .
- Bunte: AGB banks and special conditions. With AGB-Sparkassen and AGB-Postbank. Commentary , 3rd edition, Munich 2011, ISBN 978-3-406-61200-8
- ↑ Analogous to BGHZ 123, 83; Insurance terms and conditions.
- ↑ a b BGH WM 1997, 131
- ↑ BGH NJW 1991, 102
- ↑ BGH NJW 1992, 1097
- ↑ BGH NJW 1995, 2637
- ^ BGH WM 1989, 1926
- ↑ BGH ZIP 1996, 702
- ↑ BGH WM 2000, 2423
- ↑ BGH WM 2000, 1328
- ↑ BGH ZIP 2000, 65
- ^ BGH WM 1990, 51 - Global assignment
- ↑ BGH WM 1992, 813 - Room security transfer
- ^ BGH WM 1998, 227
- ↑ BGH NJW 1987, 1885
- ↑ BGH ZIP 1982, 290
- ^ BGH WM 1995, 1397
- ^ BGH WM 1997, 1615
- ↑ BGHZ 102, 82
- ↑ BGH, judgment of November 30, 1993 - Az .: XI ZR 80/93: Fees for cash withdrawals at the bank's own EC machine may only be charged if the customer can at least get the cash free of charge at the counter.
- ↑ BGHR 2005, 921
- ^ BGH, judgment of May 7, 1991 -Az .: XI ZR 244/90
- ^ BGH, judgment of July 15, 1997 -Az .: XI ZR 269/96 and XI ZR 279/96
- ^ BGH, judgment of February 17, 2004 -Az .: XI ZR 140/03
- ^ BGH WM 1988, 1780
- ^ BGH WM 1979, 533
- ↑ See Pleyer / Huber, ZIP 1987, 424 (430)
- ↑ a b BGH, judgment of May 6, 1997 - Az .: XI ZR 208/96
- ↑ Cf. u. a. BGH WM 1997, 1747, 1799; BGH WM 2001, 20
- ^ BGH, judgment of April 21, 2009 - XI ZR 55/08 , -Az .: XI ZR 55/08 and XI ZR 78/08