Loan (Germany)

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Loans ( ugs. Also credit , alternative spelling loan ; English loan ) is a law of obligations contract in which a lender (or lenders) a borrower (or borrowers) money ( banknotes , coins , bank money ) or fungible things ( property, loan ) transfers to property and the borrower is obliged to return items of the same type, quality and quantity to the lender after the expiry of the period or termination .

etymology

According to the linguist Eberhard Gottlieb Graff , the word loan comes from the Old High German analêhan for "loan". The word component "lêhan" contains "leihen", which probably refers to the loan in kind as neighborhood help. It was not until the 16th century that loans in Germany were supposed to have acquired the meaning of "lending money" during the flourishing trade . In their dictionary, the Brothers Grimm refer to “loan”, according to which an Austrian wisdom from 1581 related the loan to sums of money for the first time.

history

In Mesopotamia , money lending has been around since the middle of the 3rd millennium BC. Chr. Attested. The first Mesopotamian loan agreements date from the Ur III period around 2100 BC. The Codex Hammurapi from the time 1755/1754 BC. Chr. Knew the loan as part of a distinct contract system with fixed forms. Since sales contracts were cash purchases that could trigger advance payments, the outstanding payments were constructed as loans and paid for using grain or metals. In this way, loans in kind became an integral part of the old Babylonian economy, especially through the circulation of grain and silver. Often, dispositions such as the assignment of claims or warranty rules were specified in the documents. The interest in Babylonia was called sibtu ("increase"), it was 33 1/3% for grain and 20% for silver and could be paid by slave labor as security for the antichrese . Contracts conforming to the Hammurapi Codex were checked by officials because they were otherwise void .

In principle, Roman law only knew the interest-free loan agreement ( mutuum ). If the parties wanted to agree on a loan rate , this had to be agreed via stipulation . The debtor undertook to repay the same amount of similar items ( tantundem eiusdem generis et qualitatis ) on the repayment date . The most original form of the loan business in Rome was the unilaterally binding nexum , a legal transaction which it is assumed that it must have been very similar to the manipulation . Its details are lost early, even before the turn of the century, after it had been abolished in the course of the class battles . Ultimately, the only remaining form of credit was the mutuum, which emerged in the 2nd century AD . Intercession jurisprudence emerged as early as the middle of the first century . The Senatus Consultum Velleianum , which forbade women who acceded a man by borrowing or by guaranteeing a man's guilt , was pioneered in this. In contrast to the freedom from interest under Roman law , the church forbade the agreement of interest (canonical interest prohibition). Since the Carolingian period , the prohibition occupied the internal circle of the clergy, through the economic boom of the 12th century it was also revealed in the external area of ​​canon law. Interest was viewed as usury with reference to the Bible , specifically the church referred to Luke 6.35: “mutuum date nihil inde sperantes” ( “Rather, love your enemies and do good and give money where you do not hope to get anything in return” ). As early as the Old Testament , passages testify to this idea from Hebrew law .

The Codex Maximilianeus Bavaricus Civilis of January 1756 already made a distinction between loan and loan , with the latter the loan object did not (and does) not become the property of the borrower and must be returned to the lender. Loans and loans were still considered real contracts . The General Prussian Land Law (APL) of June 1794 separated the two treaties even more clearly. This close relationship was retained in the Austrian ABGB of June 1811. With the entry into force of the BGB in January 1900, a uniform loan law arose in Germany , albeit only fragmentarily with regard to its economic importance (Sections 607-610 BGB old version). Most of the open legal questions - such as the lack of a legal definition of the term loan - had to be clarified through jurisprudence and specialist literature . The legislature considered the term loan to be naturalized in legal life, so that a legal definition seemed unnecessary. In April 1962, the Federal Court of Justice understood this to be a "contract of obligations under the law of obligations on the use of capital for a fee or free of charge."

Etymologically , terms such as loan, locatio conductio , nexum or mutuum were used up until the 19th century . The concept of credit has only existed since the blossoming capitalism of the 19th century. The “Creditum” was a debt and not a loan and arose with every claim . That is why today every claimant is called a creditor in foreign languages ( English creditor , French créditeur or Italian creditore ). The Italian Codice civile (CC) calls every claim Italian credito (Art. 1992 CC).

In Germany, the modernization of the law of obligations in January 2002 dispensed with the term credit , which served as a generic term for money loans, deferred payments and other financial aid; the manifestations of credit have taken its place. She changed the loan contract from the previous real contract to a consensual contract , so that the contract comes about through party agreement and not only through the payment of the loan. This means that the payment as a fulfillment of the contract no longer has any constitutive effect. In addition, it has separated the provisions for the monetary loan ( §§ 488 ff. BGB ) and for the property loan ( §§ 607 ff. BGB ).

Legal issues

While the BGB speaks of loan and thus elevates it to a legal term, banking law uses the term credit.

BGB

The Civil Code regulates the loan agreement in § 488 BGB whose principal obligation consists in the obligation of the lender, the borrower a sum of money to put in the agreed amount available while the borrower is required to have a due interest to be paid and at maturity the provided Repay loan. The credit agreement is legally equivalent to the loan agreement . The BGB lists various sub-types of this loan contract, namely the consumer loan contract ( Section 491 BGB), deferred payment ( Section 506 BGB), installment delivery contract ( Section 510 BGB), real estate consumer loan contract ( Section 511 BGB) and the free loan contract ( Section 514 BGB ). The regulations for the loan contract apply to all legal entities , while the consumer loan contract contains specific regulations for consumers ( § 13 BGB). The real estate consumer loan contract is a special form of the consumer loan contract and contains provisions for real estate financing .

As with every contract , an agreement on the minimum contractual components ( Latin essentialia negotii ) is required, in this case the amount of money or the item to be made available and interest. In the case of money loans, an interest rate is usually agreed, which - if nothing special is agreed - is always to be paid after one year. If the term is shorter than one year, the interest must be paid on the reimbursement (cf. § 488 Paragraph 2 BGB ). Additional loan fees cannot be effectively agreed in the general terms and conditions of the credit institutions for consumer loan contracts .

Since the BGB only speaks of the lender, it does not specify the type of economic entity . Lenders are primarily credit institutions , but also non-banks such as private lenders or loan sharks .

Loan agreements can be ineffective because of usury . The immoral or usurious business is void according to § 138 BGB if there is a noticeable disproportion between performance and consideration . In particular, usury of interest comes into consideration, which is spoken of when the agreed interest rate exceeds the interest rate usually applicable on the market by 100% (e.g. 24% p. A. Instead of 12% p. A.).

Banking law

The term credit in Section 19 (1) KWG is a term that focuses on balance sheet items in the bank balance sheet . In the enumerative list of section 19 (1) no. 1 KWG, “money loans of all kinds” are mentioned as the most important type.

Loan Types

Wirtschaftspraxis has developed the following additional types of loan:

Loans are offered under different product names (e.g. "easy credit", civil servant loan , small loan, etc.) without these advertising terms representing an independent type of loan.

Loan terms

The loan terms include, in particular, the loan costs and the loan collateral.

Loan costs

The loan costs are an integral part of the loan terms. The effective interest rate is the key cost indicator when looking for affordable loans. The calculation of the effective interest in relation to the end user is prescribed in § 6 Price Indication Ordinance . For an exact calculation, however, the classic pension calculation can also be used if the amount and time of all deposits and withdrawals associated with the loan can be queried by the loan provider:

If loans have a structure that makes it difficult to understand, then all payments must be recorded regardless of their name, because the monetary effect of a payment is completely independent of how the payment is called. Effective interest formulas in which incoming and outgoing payments are mathematically evaluated differently according to the category, can lead to different results for two loans with the same payment flow (amount and time). The use of the classic pension calculation to calculate the effective interest rate avoids manipulation of the effective interest rate through loan design. With some loan structures, it is hardly possible to use prescribed effective interest calculations. The classic pension calculation is particularly helpful here. Today, the iterative processes used in pension calculation are implemented in special loan analysis programs as well as in some spreadsheet programs.

Loan collateral

If the lender is unable to provide a blanket loan , the borrower must provide collateral from their own assets or from third parties. Common loan collateral are particularly transfer of ownership of things (such as the transfer of ownership of motor vehicles ), assignment of receivables , the pledging of securities or mortgages ( mortgage , mortgage , land charge ). Typical loan collateral from third party security providers (in addition to the types listed) is surety , guarantee or joint and several liability. The contract under the law of obligations, which forms the legal basis for the real hedging transactions, is the security agreement and not the loan agreement.

Shareholder loan

A special form are shareholder loans that are granted in the group between the parent company and subsidiary or shareholder . In terms of tax law , the arm's length principle is to be observed, which expects loan conditions from the parties involved, as would be concluded between independent contracting parties. The mutually agreed transfer prices must correspond to market prices or market interest rates . In terms of commercial and corporate law, shareholder loans must be classified as subordinate insolvency claims in a corporate crisis ( Section 39 (1) No. 5 of the Insolvency Code ).

literature

Web links

Wiktionary: loan  - explanations of meanings, origins of words , synonyms, translations

Individual evidence

  1. ↑ Eberhard Gottlieb Graff, Althochdeutscher Sprachschatz , Volume 2, 1826, p. 127.
  2. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 261
  3. ^ Brothers Grimm, German Dictionary , Volume 6, 1838, Col. 310
  4. ↑ Manfred Landfester (Ed.), Der neue Pauly: Enzyklopädie der Antike , Volume 3, 1997, Col. 326
  5. ↑ a b Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . P. 87 f.
  6. ↑ Bruno Meissner / Erich Ebeling (eds.), Reallexikon der Assyriologie und Vorderasiatischen Aräologie , Volume 2, 1938, S. 123 ff.
  7. ↑ Horst Klengel , King Hammurapi and the everyday life of Babylon , 1991, p. 215 f.
  8. ↑ Katrin Schmauder, The Loan in the Syrian Cultural Area , 1998, p. 10
  9. ↑ Iulius Paulus , Digest , 45, 1, 68.
  10. ^ Herbert Hausmaninger , Walter Selb : Roman private law. 2001, p. 213 ( books.google.de ).
  11. ↑ Uwe Wesel: History of the law in Europe: From the Greeks to the Treaty of Lisbon. Beck Juristischer Verlag, Munich 2010, ISBN 978-3-406-60388-4 . P. 214.
  12. ^ Wolfgang Ernst : Intercession. From the prohibition of women's intercession to the immorality of dependents' guarantees to protect consumers as intercedes . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 395-430 (397 f.).
  13. ↑ Uwe Wesel: History of the law in Europe: From the Greeks to the Treaty of Lisbon. Beck Juristischer Verlag, Munich 2010, ISBN 978-3-406-60388-4 . P. 334 f.
  14. ^ Benno Mugdan , Motive , Volume 2, 1899, p. 170.
  15. ^ BGH, judgment of April 18, 1962, Az .: VIII ZR 245/61.
  16. ↑ Kai-Oliver Knops / Heinz Georg Bamberger / Gerrit Hölzle (eds.), Civil Law in Transition: Festschrift for Peter Derleder on his 75th birthday , 2015, p. 381
  17. ↑ BT-Drs. 14/6040 BT-Drucksache 14/6040 from May 14, 2001, draft of a law to modernize the law of obligations. P. 252.
  18. ↑ BT-Drucksache 14/6040 of May 14, 2001, draft of a law to modernize the law of obligations. P. 252.
  19. ↑ BGH, judgments of May 13, 2014, Az .: XI ZR 170/13 = NJW-RR 2014, 1133 and Az .: XI ZR 405/12 = BGHZ 201, 168 = NJW 2014, 2420.