Bank report
Under banking affairs ( English banking information ) the generally held strictly is standardized notification of a credit institution on the economic conditions, the business practices and payment behavior of customers as part of normal banking business relationship understood. Bank reports aim to make the credit risks of banks and other lenders assessable. This term bank information only includes information in the context of the business relationship, but not official requests for information, as in tax or criminal proceedings, which must be ordered by a judge (see details of banking secrecy ).
Legal bases
With regard to legal relationships, a distinction must be made between two levels. Since May 1987, the credit institutions have been using the “Principles for the implementation of the bank information procedure between credit institutions” created by the Central Credit Committee (today: Die Deutsche Kreditwirtschaft ), which are intended to standardize the information procedure in terms of content and form. They regulate the legal relationships between credit institutions.
In the relationship between bank and customer, the admissibility, scope and content of bank information are based on the General Terms and Conditions (No. 3 AGB-Sparkassen / No. 2 AGB-Banken). Formally, a form is used throughout the institute that enables certain, text-based fields to be checked. In terms of content, general formulations were chosen, which is specified in the terms and conditions. According to this, information on the amount of account balances, savings balances, custody account or other assets entrusted to the bank, as well as information on the amount of credit drawn, are not given. Information about merchants registered in the commercial register may only relate to their business activities and must be omitted entirely if the customer has given appropriate instructions. Information about private individuals may only be given "if they have given their express consent in general or in individual cases". This means that information about companies can generally be given, unless there is an instruction to the contrary. Conversely, private customers must give general or special permission to provide information. Information about legal entities and traders registered in the commercial register is therefore considered approved, unless the account holder has expressly prohibited it. Information about other customers (e.g. private customers) and associations will only be given with the express consent of the person concerned.
Information procedure
On the basis of the "Principles for the implementation of the bank information procedure between credit institutions", four aspects of the provision of information are important:
- Requests for information should be made in writing, and only in exceptional cases by telex or telephone. In the request for information, the reason for the request with which the legitimate interest in the bank information is made credible must be stated. The inquiring bank must make it clear whether it is obtaining the information in its own interest or in the customer's interest. In the case of requests for information in the interest of a customer, his name is not mentioned. However, the inquiring bank is obliged to give the name of the inquiring customer to the inquired bank if the customer about whom the information was provided is entitled to be named.
- Provision of information: Bank information should be kept general. Bank information is only given on the basis of knowledge that is available to the authority providing the information. The information only contains general statements about the economic situation of the customer such as solvency or creditworthiness . No special research is done.
- Passing on the information to the customer : The bank information obtained in the customer's interest will be passed on to the customer in writing, unchanged in terms of content. The customer who receives bank information is expressly advised that he may only use the information received for the specified purpose and not pass it on to third parties.
- Refusal to provide information: Refusals of information should be kept general. If there is no consent from private customers or if the customer has forbidden the provision of information in the case of business customers, the refusal to provide information must be formulated in such a way that it cannot be understood as negative information. If the requested position has no insight into the economic situation of the customer, this must be clearly stated in the answer.
Typical structure
The structure of a standardized information form is kept very general and consists only of a number of pre-formulated text codes, which are grouped into different categories for the sake of clarity. An extract could look like this:
Geschäftsbeziehung 10 Die angefragte Person/Firma ist Kunde bei uns 12 Die Geschäftsbeziehung besteht seit ... Jahren 14 Das Konto wird absprachegemäß geführt
Kontoführung 25 Informationen zu weiteren Konten liegen uns nicht vor 32 In der Vergangenheit lag keine oder nur eine geringe Verschuldung vor 33 Es ist keine Neuverschuldung zu erwarten
Grundbesitz 54 Der Kunde ist im Besitz eines Grundstücks 55 Das Grundstück ist mit einer Grundschuld belastet 57 Das Grundstück wird überwiegend privat genutzt
Information and banking secrecy
The relationship between credit institutions and their customers is characterized by a special relationship of trust, which justifies the safeguarding of interests, protection and loyalty obligations. The obligation to maintain banking secrecy is a special expression of the general duty of the bank to protect the financial interests of the contractual partner and not to impair them. Banking secrecy refers to customer-related facts and assessments that a bank has become aware of on the basis of, on account of or in the context of the business relationship with the customer. Customer-related facts and assessments that fall under the protection of banking secrecy should, however, be made available to other interested parties as part of the bank information. For this reason, banking secrecy and bank information initially appear to be incompatible as a contradiction in terms. Both banking secrecy and bank information are regulated in the General Terms and Conditions, whereby banking secrecy is of paramount importance. Since 1983 the Central Credit Committee has set the boundaries between the interest in information and banking secrecy. In order to resolve this contradiction, only general information is passed on as part of the bank report, but under no circumstances details about account balances, loan amounts or loan collateral are disseminated. In addition, the private customer must generally or in individual cases give his consent to the provision of information, while corporate customers also have the option of generally prohibiting the provision of information and thus enforcing the maintenance of "absolute" banking secrecy.
Negative findings
Although the information forms also contain negative features (“financial circumstances appear tense”), this is not always used. Rather, negative insights into bank reports are usually expressed through “eloquent silence” , in that statements that are actually part of the general content of a bank report as is customary in banking are omitted. From the lack of a positive characteristic, the other bank can then conclude that the economic situation is unfavorable.
liability
Ludwig Raiser already knew in 1935 that the banks' liability for the correctness of advice and information was a sensitive issue. A bank report is correct if it corresponds to the actual level of information of the bank providing the information and the existing knowledge has been correctly implemented in the formulation of the information. It is essential that the facts at hand are also reproduced in the information. Assertions of fact are characterized by the objective relationship between utterance and reality, while value judgments and expressions of opinion are characterized by the subjective relationship of the person making the statement to the content of his statement. For the classification as a factual assertion, it is important whether the statement can be checked for correctness by means of evidence. This is ruled out in the case of value judgments and expressions of opinion, because they are characterized by the element of opinion and belief and therefore cannot be proven to be true or false.
However, due to the liability of credit institutions in the event of false information, there is a long tradition of jurisprudence. If a bank culpably issues a false credit report through a company that has a current account with it, a claim for damages due to a breach of an ancillary obligation arising from the current account may be considered. In the case of an existing giro relationship, the customer has a right to information from the credit institution providing the information from § § 280 Paragraph 1, § 241 Paragraph 2, § 242 BGB in connection with the bank contract. If incorrect information about the creditworthiness of the bank customer is given in response to a credit inquiry, the bank is obliged to pay compensation. In addition, the form-based disclaimer of liability for grossly negligent or intentional false information by credit institutions is ineffective. Banks are responsible for incorrect bank information. Therefore, according to the General Terms and Conditions No. 3 Paragraph 1 General Terms and Conditions (Banks) revised in January 2003, credit institutions are already liable for simple fault. This liability case is triggered if the information provided does not correspond to the true circumstances. If a bank untruthfully informs a customer that the financing of a planned property is secured, it is liable for the false information. Due to this incorrect information, a subcontractor took over a guarantee in the millions. The damages erroneous information based on the incurred loss is suffered by a third party because he has to rely on this information.
A loan agreement results in the secondary obligation for the lending bank not to endanger the creditworthiness of the borrower through (public) statements of fact, even if they are true, or through value judgments or expressions of opinion. The obligation to safeguard interests and loyalty resulting from a loan agreement is culpably violated by the lending bank if the creditworthiness of the borrower is endangered by (public) statements of fact, even if they are true, and by value judgments or expressions of opinion.
The BGH had also declared the practice of credit institutions to forward all data of a borrower and the credit processing to a credit information system for storage ( SCHUFA clause) according to § 307 BGB as ineffective. Triggered by this judgment, information about private customers will only be given if they have given their express consent.
Individual evidence
- ↑ No. 3, Paragraph 2, Clause 1 of the GTC Sparkassen / No. 2 GTC Banks
- ↑ No. 3, Paragraph 2, Clause 2 of the GTC Sparkassen / No. 2 GTC banks
- ↑ Munich Commentary / Roth, BGB, 4th edition. Vol. 2a, § 241, marginal note 97
- ↑ BGH WM 2006, 380, 384
- ^ Hansjochim von Wick, Dieter Feldmann: New framework conditions for credit and surety insurance . Verlag Versicherungswirtschaft, Karlsruhe 1998, ISBN 3-88487-689-9 , p. 12 ( limited preview in Google Book search).
- ↑ BGH NJW 1970, 1737
- ↑ Ludwig Raiser, The Law of General Terms and Conditions , 1935, p. 315
- ↑ BGH WM 2001, 134
- ↑ BVerfG NJW 2000, 199, 200
- ↑ BVerfGE 90, 241, 247 with further references; BGHZ 132, 13, 21; 139, 95, 102
- ↑ BGH WM 1976, 1078 ff.
- ↑ OLG Karlsruhe, judgment of October 21, 2008 - Az .: 17 U 222/07
- ↑ BGH NJW 2006, 830, 833
- ↑ BGH NJW 1954, 1193
- ^ BGH WM 1990, 1990
- ^ BGH, judgment of July 7, 1998, NJW 1999, 211
- ↑ BGH, judgment of January 24, 2006, - Az .: XI ZR 384/03, ZIP 2006, 317 ff. ("Kirch credit report in the TV interview")
- ↑ BGH HJW 1986, 46