Maximum amount guarantee

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The maximum amount guarantee as a special form of guarantee serves the purpose of defining the total amount of the guarantor's liability risk. The essential contractual protection of the surety in this limit represents the absolute upper limit, which cannot be increased by extension clauses.

Starting position

Credit institutions in particular have asked the guarantor to provide a form guarantee as collateral, which contained a so-called extension clause. According to this, the bank could, if it had claims against the principal debtor in the amount of the guaranteed amount, also assert the resulting interest claims and all costs of legal prosecution, even if this would exceed the guarantee amount. Since this power also extended to all guaranteed claims, a surety's liability that exceeded the maximum amount by far - even many times over - could arise. The previous case law of the Federal Court of Justice (BGH) had not objected to these and similar clauses , because everyone who enters into a guarantee towards a credit institution would have to reckon with such a clause, which determines the extent of the guarantee in accordance with the law.

New case law

This view of the BGH has since been criticized both in the specialist literature and in the case law of the higher regional courts . The BGH has taken up this criticism and is now classifying this liability extension clause in accordance with its landmark judgment of July 18, 2002. Section 307 Paragraph 1, Paragraph 2 No. 2 BGB as ineffective, insofar as it is intended to justify a claim by the bank beyond the agreed maximum amount. The inclusion of a maximum amount in the guarantee document is basically to be understood in such a way that it reduces the risk of the guarantee obligation in such a way - also in deviation from Section 767 (1) sentence 2 BGB - that the surety under no circumstances is responsible for the claims of the credit institution against the The main debtor has to pay more than the agreed maximum amount.

consequences

The extension clause creates an incalculable risk for the surety, which according to the sense and purpose of a maximum amount guarantee is supposed to be eliminated. With the maximum amount guarantee, the surety wishes to limit the amount of his liability risk so that the liability risks remain manageable for him. With such a guarantee all claims are secured up to the contractually stipulated maximum amount, regardless of whether they are loans , interest or other costs .

However, in order to be able to secure the loan interest and other costs even without an extension clause by means of a maximum amount guarantee, the banks responded to the judgment by increasing the guarantee amounts. As a rule, the guarantee amount will be around 10 to 15% above the loan amount to be secured so that the interest and cost risk is also covered.

Type of surety

The cited judgment concerned a GmbH as guarantor. Extension clauses are therefore void for all guaranteeing legal forms as well as for guaranteeing natural persons . Credit institutions can therefore only require maximum guarantees without an extension clause and must cover their interest and cost risk by increasing the guarantee amount, regardless of who is guaranteeing it.

Recognition under banking supervisory law

A large part of the maximum amount guarantees serves as loan security at banks . 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 legally considered a credit risk mitigation technique by banking regulators . If loan collateral is recognized as a credit risk mitigation technique by the EU- wide capital adequacy regulation (English abbreviation CRR), it leads to a lower level of capital adequacy at banks compared to unsecured loans . As a result, secured loans can be granted with a lower interest rate.

Art. 194 CRR establishes 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 recyclable need to be. 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 are part of the personal security. 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 loans 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 met for absolute maximum amount guarantees. 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. To avoid positive correlations must guarantor neither group terms with the borrower ( English cross-garanties also be connected with the bank). Art. 233 para. 1 (CRR) is in the safety assessment of the amount to be recognized as collateral to the payment, the protection provider has undertaken in the case of a credit event.

Individual evidence

  1. ^ BGH, judgment of July 18, 2002, WM 2002, 1836
  2. ↑ so still BGH WM 1994, 1064, 1068
  3. ↑ representative for many: Gerhard Pape , NJW 1996, 887 [890]
  4. ↑ u. a. OLG Stuttgart ZIP 1996, 1508, 1510
  5. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 175 FN 38
  6. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 176

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