Spouse's guarantee
By a spouse guarantee is when one spouse for the debts of the other spouse guaranteed . This form of credit protection is common at credit institutions, but under certain conditions it is immoral .
Purpose of the spouse's guarantee
The purpose of the spouse's guarantee is to prevent the transfer of assets between the spouses to the detriment of the creditor. If only one of the spouses is a borrower, the creditor without the spouse's guarantee has no way of seizing the other spouse's assets in the event of a loan default. Therefore, in the past, the financing bank demanded an absolute guarantee , regardless of the income and financial situation of the other spouse .
The case law of the BGH has limited the content and scope of such spouse guarantees.
Immorality of the spouse's guarantee
According to the case law of the BGH, the spouse's guarantee can be immoral under certain conditions ( Section 138 (1) BGB ). This is the case, though
- the surety is financially overwhelmed by assuming his obligation and
- the surety has assumed this obligation solely out of an emotional bond with the main debtor and
- the lender has taken advantage of this in a morally offensive manner.
Financial overload
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.
Emotional connection
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, taking advantage of business inexperience or impairing the formation of will and freedom of decision through misleading, creating an emotional predicament or exerting inadmissible pressure. As long as the guarantor can only be moved by his family members to assume the guarantee and the bank does not deal with the emotional predicament of the guarantor justified or exploited 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 the latter judgment, the BGH reiterated its view that the liability of the last available asset to secure the liabilities of a close relative does not necessarily 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 guarantor's home ownership over the long term if his income only exceeds the seizure allowances to a limited extent. Nor does the standard protect the possibility of permanent rent-free living. If the credit institution recognizes from the facts disclosed to it that the person who is to take over the guarantee is not financially involved and has only taken on the position of a partner out of emotional dependence, i.e. he does not pursue 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.
Business inexperience
If the financially blatantly 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. Experienced and business-minded people are allowed to take on guarantees due to an emotional bond with their spouse, which are extremely overwhelming financially.
consequences
If guarantees are requested solely because of the prevention of possible shifts in assets, claims against the financially capable surety are denied until the shift of assets has occurred. Guarantees agreed after January 1, 1999 are immoral if they do not expressly contain this limited liability in the contract text. Partnerships similar to marriage are treated the same as spouse guarantees.
The guarantee of one spouse for the loan of the other spouse or third party borrower is not a disposal of the entire property ( § 1365 BGB) within the framework of the statutory property regime of the community of gains , because it merely represents the assumption of a contingent liability. The term disposition, on the other hand, means a legal transaction through which the person disposing of a right acts directly, i.e. either transfers it to a third party or encumbrances it with a right, or annuls the right or otherwise changes its content. A spouse can therefore effectively vouch for themselves without the consent of the other partner. Therefore, the excessive entering into guarantees can jeopardize the material basis of a marriage without any special legal protection preventing this.
literature
- Fee Kinalzik: Evaluation of the legal benefits to women. Content control of spouse guarantees and marriage contracts (= Düsseldorfer jurisprudential writings. 127). Nomos, Baden-Baden 2014, ISBN 978-3-8487-1669-2 (also: dissertation at the University of Düsseldorf 2014).
- Daniel Schnabl: Reversal of case law on immoral guarantee contracts? In: Wertpapier-Mitteilungen . 2006, ISSN 0342-6971 , pp. 706-714.
Individual evidence
- ↑ BGH WM 1994, 677
- ↑ BGH WM 1994, 1022
- ^ BGH WM 1998, 2327
- ↑ a b BGH WM 1997, 511
- ↑ a b BGH WM 1998, 239
- ↑ BGH WM 1997, 465
- ↑ BGH NJW 2001, 2466
- ↑ BGH BB 2002, 585
- ↑ BGH WM 1994, 680
- ↑ BGH ZIP 2000, 65
- ↑ BGH ZIP 1993, 26
- ↑ BGH NJW 1994, 1341
- ↑ BGH WM 2002, 125
- ↑ BGH ZIP 1997, 406
- ↑ BGH NJW 1999, 58
- ↑ BGH BB 1997, 543
- ↑ BGHZ 1, 294
- ↑ BGH WM 1983, 267
