Guarantee (Germany)

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The guarantee is in Germany a contract in accordance with § 765 BGB between the guarantor and a creditor , its by the creditor claims against its debtors in the event of its insolvency may hedge.

General

The creditors may have an interest in securing their credit risk vis-à-vis their debtors by means of loan security. For this purpose, the BGB offers four loan securities , namely, in addition to the guarantee, the retention of title ( Section 449 BGB), the mortgage ( Section 1113 BGB), the security land charge ( Section 1192 (1a) BGB) and the pledge ( Section 1205 BGB). The guarantee is the only personal security because natural or legal persons act as guarantors. For the remaining loan collateral, the collateral provider to the collateral taker things or rights as collateral available (Retention of title goods in trade credit , mortgage and land charge: land or land rights in real estate financing , pledging: movable property or rights in the pawnshop ). That is why they are called real certainties . The guarantee is one of the intercessions ( liability for someone else's debt ), which also includes a loan order , guarantee , letter of comfort , assumption of debt or joining of debt .

history

Roman law

Under Roman law, the guarantee law was of the verbal contract type . Originally there was the sponsorship guarantee ( Latin sponsio ), an old civilian form of business that applied to Roman citizens and only secured main obligations that were in turn justified by a verbal contract. Business of the stipulation type was primarily secured by means of a highly personal sponsio . A more recent form of guarantee was the promise of loyalty ( Latin fidepromissio ), which was also due to non-Romans. The surety promised the same here as the principal debtor had promised. Since it was also a verbal contract, it was all a matter of what the principal debtor had promised, not what he really owed. According to today's understanding, the fidepromissio was thus close to total debt . The bond between the principal debtor and the guarantor was still quite loose, because both stood side by side. The guarantee obligation on the verbal contractual type of surrender of the main debt “on loyalty” ( Latin fideiussio ) is even more recent . The main difference of this guarantee promise was that, conversely to the fidepromissio, the guarantee promise was not linked to the promise of the principal debtor, but to his "guilt". By referring back to the “promise” of the main debtor, the guarantee obligation became ancillary , provided that the promise was valid as an agreement. The creditor now also had the option of who he wanted to claim, because the character of the ultimate personality of the original sponsio had expired.

Under Emperor Justinian , only the form of guarantee, the fideiussio, was continued, which can be read in the later so-called Corpus iuris civilis . The Institutiones Iustiniani are the source evidence . In contrast to its predecessors, the fideiussio was inheritable , so it burdened the estate. The Justinian law introduced another innovation, which continues into the modern surety law. Justinian granted the surety the later so-called beneficium excussionis , which, according to today's understanding, comes close to the " defense of advance action" (more correctly, advance execution). The surety was liable as a subsidiary to the main debtor. On the other hand, he could demand reimbursement of expenses from the debtor if he made use of it himself .

Common law

The word guarantee appeared in Germany for the first time in 325 as “Purgisceffi” on the basis of the “fideiussionibus”. In the 10th century, the word “Bürgschaft” developed from the Old High German “burgiscaf” or “burgiskaf” in terms of content from the Roman “fideiussio”, but it is not borrowed from this word, but has its own origins. According to Werner Ogris , there was hardly a business in the Middle Ages that could not be guaranteed by providing a guarantor. The Sachsenspiegel from 1221 mentioned the guarantor ("Borge"), the Schwabenspiegel published around 1275 assumed that the guarantee could be inherited. In addition, there was the German loan word deposit ( Latin cautio , "security, caution"), from which (the words that are no longer used today) cavieren (security or guarantee) and Kavent (warrantor, guarantor) were derived.

In 1754 Christian Wolff defined the "fideiussio" as a contract, "whereby one person makes himself binding for free to someone to whom another is already connected or is to be connected to do what the other should do if he does not" . The Codex Maximilianeus Bavaricus Civilis (CMBC) of January 1756 expressly provided for the accessory nature of the guarantee in § 8 CMBC . The author of the CMBC, Wiguläus von Kreittmayr , Germanized the Roman "fideiussio" as "fidejussion" in 1765, but this did not catch on. The General Prussian Land Law (APL) of June 1794 regulated the guarantee in detail (I 14 § 200-401 APL) and designated it as security (I 14 § 200 APL), which had to be submitted in writing (I 14 § 203 APL) and in As a rule, it could not be taken over by a "woman" (I 14 § 226 APL). The APL classified it as an accessory (I 14 § 251 APL) liability of the surety in the event that the debtor does not fulfill his obligation (I 14 § 257 APL). In the case of a guarantee, the surety entered into all rights of the obligee against the debtor (I 14 § 338 APL), there was the joint guarantee (I 14 § 378 APL), counter-guarantee (I 14 § 380 APL) or absolute guarantee (I 14 § 393 APL). The ADHGB from May 1861 declared the commercial guarantee to be an absolute guarantee (Art. 281 ADHGB).

The guarantee was only used very late in the German banking industry as collateral for credit . The first Prussian Savings Bank Act from 1838 provided for mortgages, domestic government bonds , Pfandbriefe or “other completely safe” investments as collateral . In the 1850s, Cologne's banking system was mostly based on blank loans for industrial financing . In 1856, unsecured loans and loans secured by guarantees at the savings banks reached a volume of 12 million marks, while personal loans secured by pledges made up 6 million marks and mortgage loans (real loans) made up 40 million marks. On the other hand, the motto of their founder Hermann Schulze-Delitzsch in 1904 was true of the credit unions : "The indispensable keystone in the organization of personal credit is the guarantee". In 1910, the total loan volume of all credit unions was based on a share of 77.24% secured by guarantees.

Civil Code

During the preparatory work on the BGB , the commission proposed a legal definition of the guarantee from Art. 927 of the Dresden draft of the Code of Obligations of 1866 : “Through the guarantee contract, one contracting party (surety) is obliged to the other contracting party, the creditor of a third party, in addition to the The latter (main debtor) is responsible for its liability. ”It has been preserved today as a legal definition in § 765 BGB.

Essence of the guarantee

There are three parties involved in the guarantee, namely the main debtor who bears the liability, the surety for the liability and the creditor of the liability.

The guarantee first of all requires the existence of a debt relationship between the obligee and the main debtor. This is called the main liability in German law and is usually a loan or credit . When granting a loan, credit institutions require, depending on the creditworthiness of the main debtor, loan collateral in the event that the main debtor becomes insolvent. If the bank decides in favor of the guarantee, it concludes a guarantee contract with the surety in which the latter undertakes to take responsibility for the main debt if the main debtor does not meet his obligations.

In contrast to the contracts in which both parties are entitled and obliged (e.g. purchase contracts), the guarantee is a unilaterally binding contract. The creditor is only entitled, the surety is only obliged. The contract does not give rise to any performance obligations for the obligee. The obligee can therefore demand the main debtor to fulfill the main claim and, in addition, if the main debtor does not fulfill the claim, he can claim the claim from the surety on the basis of the guarantee contract.

The respective amount of the main liability is decisive for the amount of the surety's obligation. This principle is called accessory ( §§ 767 , 768 BGB). In principle, the obligee must first take legal action against the main debtor (by attempting foreclosure against the movable property) before accessing the surety (so-called defense of the preliminary action, § 771 ). However, if the surety has personally guaranteed himself - which is the rule in practice - he is not entitled to this objection.

For a long time it was questionable when the claim against the surety arises from an absolute guarantee and becomes due, and when the statute of limitations may arise . The XI responsible for guarantee law. Senate of the Federal Court has found in its judgment of 29 January 2008 in the case of an absolute guarantee that the maturity of the guarantee requirement occurs with the maturity of the principal and does not rely on a separate power request of the creditor against the guarantor.

In the relationship between the principal debtor and the guarantor is usually a job or a paid agency before. If the surety pays the obligee, the claim of the obligee against the main debtor is automatically transferred to the surety ( legal session ). An important consequence of this legal transfer of claims is the acquisition of all, otherwise still existing, ancillary security rights to the claim ( Section 774 (1) sentence 1, Section 401 (1) BGB). On the basis of this legal transfer of claims and the security rights that may be associated with it, or from the agency agreement, the surety can then demand compensation from the principal debtor or the acceptance of the realization of the objects serving as security. Non-accessory security rights are not transferred to the surety in accordance with Section 774, Paragraph 1, Clause 1, Section 401, Paragraph 1 of the German Civil Code (BGB); however, according to case law, the surety has a contractual obligation to transfer these rights.

Formal requirements for the guarantee contract

In order for the guarantee to be valid, a written declaration by the surety is required in compliance with the provisions of the statutory written form ( Section 766 of the German Civil Code). This must contain all the essential characteristics of a guarantee - name of the main debt, amount of guarantee, name of the obligee, etc. The main culprit must be at least individually determinable. If the written form requirement is not complied with, the guarantee is null and void ( Section 125 BGB). These formal requirements do not apply to the guarantee of a registered trader ( § 350 HGB). A registered trader can also give an oral guarantee if the guarantee is a commercial transaction for him . The merchant's guarantee is always directly enforceable ( § 349 HGB): in contrast to the civil-legal guarantor, he cannot assert the objection of the advance action, but can already be held liable without an enforcement order having been obtained against the main debtor following a previous action and an attempt to enforce the title was unsuccessful.

There is an important peculiarity with regard to a power of attorney to issue a guarantee. As an exception to Section 167 (2) of the German Civil Code (BGB), this already requires form. This is also important in the case of blank guarantees (no claim / guarantee amount entered yet): These are regularly invalid; However, if this has been filled out in the meantime, and it is no longer recognizable to the creditor of the guarantee promise that there was a blank guarantee, the promise is effective. The promising party is obliged because of the legal form he has set ( analogous to Section 172 BGB).

Types of guarantees

The types of guarantee differ according to their scope and content:

The scope of the surety defines the surety's scope of liability , while the content describes the purpose of the security .

Principles according to recent jurisprudence

As a result of the decision of the Federal Constitutional Court (BVerfG), the Federal Court of Justice has repeatedly pointed out that guarantees are immoral ( Section 138 (1) BGB) and thus void if:

  • the surety is “grossly” financially overwhelmed (the burden of proof lies with the surety) and
  • the guarantee was entered into out of close emotional ties to the main debtor and
  • the creditor has exploited the close emotional ties for his own purposes.

The other two conditions are presumed when the first is met, so that the obligee has to refute them. These principles have also been applied to the following issues.

Relatives' guarantee

The guarantees of close relatives have received special attention in the higher court case law. For years it was the standard practice of credit institutions to require a guarantee from the borrower's spouse or child for loans, even if they were completely without assets. The BGH approved this practice until 1993. In 1989 two complainants lodged a constitutional complaint against these BGH judgments. They had given a guarantee for their father or husband even though they had little or no income. The two women had not known that they could ever be used. After the main debtors could no longer pay, they were successfully sued by the banks. They appealed to the Federal Constitutional Court against the final rulings of the BGH. On October 19, 1993, this overturned the judgment of the BGH in one of the cases.

Guarantee from family members

In the case of declarations of surety by adult children for the business liabilities of their parents, the BGH affirms the immorality in particularly blatant exceptional cases if the obligation assumed by the surety far exceeds the surety's financial capacity, the surety had no business experience at the time of the conclusion of the contract and the obligation out of willingness to help the parents or indeed from a certain self-interest, but without involvement in the financed project and the investment decision. Furthermore, invalidity can also result from the fact that the parents influenced the resolution of the adult but inexperienced surety to commit to the creditor in a legally disapproving way. The BGH regularly sees such behavior on the part of the parents as a violation of the family law obligation to be considerate from § 1618a BGB. This violation can only justify the immorality of the guarantee if it is also attributable to the bank (the parents are not involved in the guarantee contract). For attribution, however, the BGH allows it to be sufficient if the bank knew or should have known of the parents' improper influence on the child's will-formation. Since it is almost always necessary to exert such influence on guarantees from children for loans from their parents, such guarantees are generally ineffective. Exceptions can only apply if the children are experienced in business, have an interest in the loan of their own and are already involved in the loaned project. As a matter of principle, the bank may not approach its customers with the request to give them the security of a child who is still inexperienced in business, has no interest in granting the loan and, if the risk arises, will probably not be in a position for a long time will be to pay off the secured liability. Guarantees from people who are emotionally close to the borrower are fundamentally immoral if they have no economic value as a pure means of security for the lender due to their extreme financial overload. However, if such an obligation is to be used to record future asset transfers or certain types of other subsequent asset acquisitions, in particular inheritances from the surety, this limited purpose of liability must be specifically mentioned in the surety. Such guarantees must be in the direct self-interest of the capable guarantor.

Guarantees from spouses

More comprehensive information can be found in the main article, spouse guarantee . If guarantees are requested solely because of the prevention of possible asset shifts between the spouses, recourse to the capable guarantor is denied until the asset shift has occurred. Guarantees agreed after January 1, 1999 are immoral if they do not expressly contain this limited liability in the contract text. If spouses with no business experience guarantee themselves in order to secure the loan to the company belonging to the other spouse, the guaranteeing spouse must be able to pay the guarantee amount on their own at the time of assuming the guarantee. In addition, he must be truthfully informed by the bank about the legal and economic consequences of his guarantee risk. Experienced and business-minded people are even allowed to take on guarantees due to an emotional bond with their spouse, which are extremely overwhelming financially. An exception to these principles should apply, according to the will of the BGH, if the amount of the guarantee is "still manageable" and entering into the main debt (usually a loan) is also in the interest of the surety or benefits him (a renovation of the shared home Etc.). Partnerships similar to marriage are treated the same as spouse guarantees.

Further focus topics

The aforementioned ruling by the BVerfG prompted the BGH and the lower courts to fundamentally correct the previous surety jurisprudence. The following main topics have also been modified since then:

Relationship between the scope of the guarantee and the guarantor's capacity

If the guaranteed liability is so high that it is highly unlikely that the guarantee obligation will be met even with the most favorable forecast when the contract is concluded, the guarantee will be classified as immoral. Such a guarantee lacks any economic sense from the outset if the surety is threatened with a debt from which he cannot free himself for a lifetime on his own. The surety can be assumed to be extremely financially overwhelmed if, with a probability bordering on certainty, he is not even able to raise the interest. If the surety's financial resources are practically insignificant with regard to the surety obligation assumed, then the surety is immoral, without further burdensome circumstances. However, if a guarantee does not overwhelm the surety financially, it can only be immoral due to particularly aggravating circumstances attributable to the credit institution. This includes, for example, exploiting business inexperience or impairing the formation of will and freedom of resolution through misleading, creating an emotional predicament or exerting inadmissible pressure for the purpose of issuing a guarantee. As long as the surety can only be induced by his family members to assume the surety and the bank does not justify or exploit the surety's emotional predicament in a legally reprehensible manner, there is no immorality. The receipt of the guarantee document alone does not imply any unfair influence on the part of the bank on the will of the surety. In this judgment, the BGH reiterated its view that the liability of the last available asset to secure the liabilities of a close relative does not automatically lead to the immorality of a guarantee. The norm of Section 138 (1) of the German Civil Code (BGB) does not regularly have the purpose of maintaining a surety's residential property in the long term, even if his income only exceeds the seizure allowances to a limited extent. Nor does the standard protect the possibility of permanent rent-free living.

Business inexperience of the surety

If the financially overburdened surety is to be held liable for risks that he cannot assess based on his level of education or business experience, the surety is void due to immorality. Business experienced are managing directors, majority shareholders of a GmbH and general partners as well as majority shareholders of a KG, because they can influence the main liability. Guarantees from this group of people are harmless. Authorized officers or even simple employees and minority shareholders, on the other hand, cannot influence the guaranteed loans; their guarantees are void.

The banks are expected to clarify the legal status of the guarantor in good time. In order to get a comprehensive picture of the level of training and business experience, the bank must deal with the personal, professional and financial sphere of the guarantor in a personal meeting. Credit institutions have an inadmissible influence on the resolution of the surety if their employees downplay the scope of the surety, in particular if the signature is a mere formality. Such behavior can create the impression, especially in the case of a surety inexperienced in business, who is also closely related to the principal debtor, that he has nothing serious to fear and thus discourage him from delving into the content of the document presented.

Shareholder guarantees

Credit institutions have a legitimate interest in demanding the personal liability of significantly involved shareholders and managing directors for business loans. The current banking practice of making the granting of a loan dependent on the legally and / or economically responsible persons standing up for the resulting claims is not legally objectionable. In doing so, the bank can generally assume that those who invest in a company are doing so for their own financial interests and for this reason alone are not taking any unreasonable risk through liability. In principle, there is no need for the lender to investigate the reasons for the participation in the company and the liability for its debts. As a rule, this applies even to shareholders who only have the role of straw man . Since straw man deals are serious and, as a result, legally effective, the bank does not need to worry about why the straw man is willing to issue the guarantee. It can assume that he is acting for economically reasonable reasons for which he is solely responsible, as long as it is not aware of the opposite. This also applies in particular if the beneficial owner of a company puts forward his wife or a relative as a partner because he does not want to act in this position himself. However, if the bank is included in the economic background of the company formation in such a way that the real motives of the guarantor emerge clearly, it must not turn a blind eye to this. If the credit institution recognizes as a result of the facts disclosed to it that the person who is supposed to assume liability is not financially involved and has only assumed the position of a partner out of emotional dependency, i.e. he is not pursuing his own economic interests, the overwhelmed guarantor is equally worthy of protection as in the typical cases of liability statements for the liabilities of persons to whom he is closely emotionally attached. Only in such cases must the assumption of liability be measured against the criteria that the BGH has generally developed for guarantees for financially overwhelmed guarantors. If, under these conditions, loans to a company are guaranteed by a shareholder, then the shareholder must be able to influence the main liability. Since the surety as sole or majority shareholder or managing director of the main debtor can determine the extent of the loans from his or her partner or managing director position, guarantees from this group of people are harmless. Something else only applies if the limited partner only has a front man function, who only accepts joint liability or guarantees out of an emotional bond with the person behind him, and both are evident to the lending bank.

Putting pressure on guarantors

The bank or other parties involved must not put undue pressure on the guarantor to enforce the guarantee. The pressure only becomes inadequate if it goes beyond the normal credit conditions ("Security: Guarantee of ...)" in the credit agreement. The decision of the surety must therefore not be influenced in a legally disapproving manner. A violation of this can justify the immorality of the guarantee if it can also be attributed to the bank. This is the case if the bank knew or ought to have known about the improper influence of the parents on the child's will formation or the excessive influence of the spouse on the guaranteeing partner. The private guarantor may therefore only assume his liability in free self-determination without pressure. The greater the preponderance of the lender, the more serious the burdens and the closer the personal relationships between the principal debtor and the guarantor, the more likely it is that there is a lack of sober, deliberate, self-determined resolution by the guarantor.

Termination of the guarantee

In principle, the surety cannot terminate a guarantee vis-à-vis the obligee. There are two exceptions to this principle. On the one hand, a right of termination can be agreed in the guarantee contract. In practice, however, this never happens because the surety would give notice at the moment when the principal debtor's financial situation deteriorates. The intended security purpose would not be achieved by such a contractual right of termination. On the other hand, there is a right of termination for guarantees with no time limit. Without the possibility of termination, the surety would be bound by his guarantee forever. This would unreasonably disadvantage the guarantor. An unlimited guarantee can be terminated with the notice period for the guaranteed debt. The obligee then has the option of either waiving the liability of the surety or also terminating the underlying obligation and claiming against the surety from the remaining debt.

Regardless of this, the surety has the right to terminate the principal debtor in accordance with Section 775 of the German Civil Code (BGB) if his financial situation deteriorates significantly. This termination has the consequence that the surety has a claim against the main debtor to be released from the surety. This claim exists only against the main debtor, not against the obligee. The main debtor would now have to repay the main claim or provide replacement securities in order to meet the surety's claim. Precisely because the financial situation of the principal debtor has deteriorated significantly, this is typically not possible for him and the claim is in vain.

Expiry of the guarantee

The guarantee expires, among other things, if the obligee waives the guarantee, the main claim is settled or the surety is made use of, an additional security right is given up without the surety's consent or the surety makes use of a contractual right of termination. A limited guarantee expires at the end of the period (§ 777 BGB). The surety's death does not end the surety; inheritance regulations apply here because the surety's heirs take over not only his assets , but also his debts and contingent liabilities .

Recourse (recourse) of the surety against the main debtor

The guarantor may, if it has been claimed, both from the internal ratio (that is the relationship between main debtor and guarantor;., For example, order , management contract , gestio ) and after § 774 act against the debtor BGB. If the surety pays to the creditor of the main claim, the claim of the obligee against the main debtor does not expire, but is transferred to the surety by virtue of a legal act . If the main claim is secured by ancillary securities, these are transferred to the surety according to § 401 BGB. The main debtor can counter the legal claim both from defenses and objections from the main debt relationship as well as from the internal relationship. On the other hand, the principal debtor can only counter claims arising from internal relationships.

Guarantees in banking practice

As a rule, credit institutions require an absolute guarantee in order to be able to take immediate recourse to the surety in the event of the debtor's insolvency. In this way you avoid lengthy and costly legal proceedings against the debtor. Private individuals are only allowed to assume maximum amount guarantees because these limit the liability risk of the guarantor in terms of total amounts. Such a guarantee limits the scope of liability that is generally applicable by law in such a way that the surety - even in deviation from Section 767 (1) sentence 2 BGB - is generally not responsible for the creditor's claims against the principal debtor beyond the agreed maximum amount . The maximum amount guarantee must include interest, commission and costs.

Banks usually include certain additional agreements in the guarantee agreement:

  • The guarantee does not expire if the debit balance is temporarily covered ,
  • the guarantee is valid for an unlimited period,
  • the bank's claims against the debtor are neither wholly nor partially transferred to the surety until the loan is fully covered,
  • if several persons guarantee themselves, their guarantee is a joint guarantee which obliges each joint and several guarantor to
  • the guarantee remains in effect even if other loan collateral is given up.

In order to enable loan financing in the absence of collateral, the state issues public guarantees via mandataries or indirectly via guarantee banks . However, these are usually deficiency guarantees .

Recognition under banking supervisory law

A large part of the guarantees is used as collateral for credit institutions . These grant loans to third party borrowers based on the creditworthiness of the guarantor . The prerequisite is the so-called surety substitution, in which the poorer risk weight of the borrower is replaced by the better risk weight of the surety.

General

Since January 2014, credit collateral has been considered a credit risk mitigation technique for regulatory purposes. If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital for credit institutions compared to unsecured loans . As a result, secured loans can be granted with a lower interest rate or a lower margin .

The Kapitaladäquanzverordnung provides in Art. 194 CRR principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally (English valid ) and enforceable (English enforceable must be) sufficiently liquid , over time a stable value and a credit event promptly utilizable be have to. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). A distinction is made between credit risk mitigation techniques “with collateral” ( real collateral ; Art. 4 (1) No. 58 CRR) and “without collateral” ( personal collateral ; Art. 203 CRR).

Guarantees / sureties

According to this, guarantees and sureties belong to the personal securities as guarantees. For the purpose of recognition, guarantees must meet certain conditions. Art. 213 CRR requires direct guarantees, according to Art. 214 para. 1 CRR certain counter-guarantees are recognized. In the case of counter-guarantees from states and other public bodies, the secured claims may be treated like claims on the state. Art. 215 CRR stipulates that if the borrower defaults, claims can be made against the protection seller (surety) without restriction and that there must be no reservation that the institution must first demand the amount owed from the borrower. This criterion is not met in the case of guarantees with an advance complaint defense and default guarantees . In order to be recognized, the right to advance payment must be taken into account. According to Art. 183 Para. 1c CRR, it must be issued in writing , it must not be revocable by the protection seller and the protection seller's assets must be seizable by an enforceable judgment . According to Art. 183 (1b) CRR, the same rules apply to recognized protection providers as to debtors (Articles 171, 172 and 173 CRR), so that the economic situation of the liable protection seller must be examined in the same way as that of the borrower as part of a creditworthiness check. In order to avoid positive correlations, protection providers must not be linked to the borrower ( cross-garanties ) or to the credit institution.

Art. 233 para. 1 CRR is in the safety assessment of the amount to be recognized as collateral to pay is higher, the guarantor (surety) is committed in the case of a credit event. This applies to sureties, guarantees , hard letters of comfort or other joint and several liabilities .

No guarantees

No guarantees, but related to the guarantee, are the intercessions of the guarantee and the credit order . In contrast to the guarantee contract, the guarantee contract establishes an independent new liability, with which it is not connected (abstract liability; legally more precise: non-accessory liability ). The guarantee contract is not regulated in the BGB, but is permissible according to § § 311 Paragraph 1 BGB, § 241 Paragraph 1 BGB. The BGB provisions on the guarantee cannot be applied analogously to the guarantee; rather, the rest of the law of obligations applies analogously .

In the case of credit insurance , an insurance company takes on the risk of bad debts against payment of a premium (which can be raised by the debtor or the creditor) and thus takes on a role similar to that of the surety. Credit insurance is usually the loan agreement connected . In contrast to the guarantee, however, insurance law applies here.

There is also no guarantee if a legal representative (e.g. guardian or legal supervisor ) or legally authorized representative concludes a contract in the name of the person represented within the scope of his power of representation. The legal effects of the contract then only affect the person represented (Section 164 BGB), not the representative. A personal liability of the representative towards the contractual partner is only possible if the power of representation is exceeded (§ 179 BGB).

See also

literature

Web links

Individual evidence

  1. ^ Gajus , Institutiones Gai , 3, 120
  2. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 211, 291 ff.
  3. ↑ Max Kaser, Handbook of Classical Studies , Part 1, 1971, p. 663
  4. ↑ a b Inst. 3, 20, 4-6.
  5. ↑ Nov. 4.
  6. ↑ Elias von Steinmeyer, Die Althochdeutschen Glossen , Volume IV, 1898, p. 325
  7. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 70
  8. ↑ German Legal Dictionary, Volume II, 1932-1935, Col. 639 f.
  9. ↑ Werner Ogris, Personal Security in the Late Middle Ages , in: ZRG (GA) 82, 1965, pp. 140 ff.
  10. ^ Sachsenspiegel, Landrecht II 5 § 1, p. 126
  11. ↑ Schwabenspiegel, Art. 289
  12. ^ Alfred Schirmer, Dictionary of German Business Language - on Historical Foundations , 1991, p. 98
  13. ^ Christian Wolff, Principles of Natural and International Law , 1754, § 569
  14. ↑ Codex Maximilianeus Bavaricus Civilis, 4, 10 § 8
  15. ↑ General Land Law for the Prussian States , Volume 2, 1794, p. 578 ff.
  16. ^ Alfred Krüger, Das Kölner Bankiersgewerbe from the end of the 18th century to 1875 , 1925, p. 108 ff.
  17. ^ Hermann Schulze-Delitzsch / Hans Crüger, advance payment and credit associations as Volksbanken , 1904, p. 95
  18. ↑ Hans Schönitz, Der Kleigewerbliche Kredit , 1912, p. 261 (FN 57)
  19. ↑ BGH, judgment of January 29, 2008, Az .: XI ZR 160/07, p. 12 ff .; confirmed with judgment of March 11, 2008, Az.XI ZR 81/07 , BGH WM 2008, 729, 732
  20. ↑ NJW 1998, 3708 ff.
  21. ↑ a b BGH, judgment of July 18, 2002, NJW 2002, 3167
  22. ↑ BVerfGE 89, 230-235; BGHZ 156, 302 ff.
  23. ↑ The freedom of contract encompasses for each full legal capacity, the legal power to take on obligations that were fulfilled only under particularly favorable conditions. The business inexperience of a surety is no reason to burden the credit institutions with information and advice obligations (so still BGH WM 1989, 595).
  24. ↑ BVerfGE 89, 214 ff. Also on the following; WM 1993, 2199
  25. ↑ a b BGH NJW 1997, 52
  26. ↑ BGH NJW 1994, 676
  27. ↑ BGH WM 1994, 676
  28. ↑ BGH NJW 1997, 257
  29. ↑ BGH ZIP 1997, 406
  30. ↑ BGH NJW 1999, 58
  31. ↑ BGH WM 2002, 125
  32. ↑ BVerfGE 89, 214, 235f .; BGHZ 146, 37ff.
  33. ↑ BGH BB 1997, 543
  34. ↑ BGH WM 1994, 677
  35. ↑ BGH WM 1994, 1022
  36. ^ BGH WM 1998, 2327
  37. ↑ a b c BGH WM 1997, 511
  38. ↑ a b BGH WM 1998, 239
  39. ↑ BGH WM 1997, 465
  40. ↑ BGH NJW 2001, 2466
  41. ↑ BGH WM 1994, 680
  42. ↑ a b BGH ZIP 2000, 65
  43. ↑ BGH ZIP 1993, 26
  44. ↑ BGH NJW 1994, 1341
  45. ↑ BGH NJW 1995, 727
  46. ↑ BGH WM 2001, 2156, 2157
  47. ↑ BGH WM 2002, 436
  48. ^ BGH ZIP 1995, 203
  49. ↑ BGH NJW 2002, 744
  50. ↑ Dirk Looschelders , Law of Obligations. Special part , 8th edition, Vahlen Verlag, Munich 2013, ISBN 978-3-8006-4543-5 , p. 354 f.
  51. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 175 FN 38
  52. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 176
  53. ↑ BGH NJW 1967, 1020