Credit order
A loan order is the order to a contractor to grant a third party a loan in their own name and for their own account.
General
In the loan order, there is the client who instructs a contractor ( lender ) to grant a third party ( borrower ) credit. The lender grants the loan in their own name and bears the credit risk . The client does not act as a lender himself, but leaves this role to the contractor. There is usually a legal and / or business relationship between the client and the borrower , so that the client has an economic interest in granting a loan. The client does not want or must not be a lender himself.
history
The credit order goes back to Roman law and appeared for the first time in the institutions of Gaius . There Gaius reported that the validity of this mandate had not been recognized by all lawyers; while Servius had spoken out against it, one was now almost generally ( Latin sequimur ) convinced of the view of Masurius Sabinus that the credit order ( Latin mandatum qualificatum , mandatum pecuniae credendae ) could also be justified with legal effect . Therefore, in AD 48, a bank in Puteoli is said to have agreed on such a mandate. At that time it was already the case that the client was responsible for the bad debt loss from the contractor. This mandate has survived to this day in some legal systems .
Legal issues
In § 778 BGB legally defined credit order heard quite systematically to guarantee rights of the BGB. The reason for this is that according to § 778 (2nd half-sentence) of the German Civil Code, the client is liable to the contractor for his credit risk as a surety . If the credit order represents a commercial transaction for the client , he is not entitled to any objection to advance action ( § 349 HGB , § 771 BGB). Otherwise, contract law (§ § 662 to § 674 BGB) applies to the credit order, so that the credit order is informally valid; the written form requirement of Section 766 of the German Civil Code (BGB) therefore does not apply. According to Section 663 of the German Civil Code (BGB), the contractor is obliged to decide immediately for or against accepting the credit order. After acceptance, he is obliged to grant a loan - also in contrast to the guarantee.
meaning
Of the many types of intercession ( surety , guarantee , letter of comfort , assumption of debt or accession ), the loan order is the least important today. It occurs in particular in the banking sector when a parent company instructs a credit institution outside the group to grant credit to its subsidiary . The parent company has an economic interest in having credit granted to its subsidiary. As a lender, the house bank receives the absolute guarantee from the parent company as collateral for the loan , without the bank having to make its own efforts to secure the loan or the subsidiary having to provide collateral from its own assets. As part of back-to-back financing , the bank's parent company can also provide the bank with refinancing of the loan to the subsidiary. In terms of banking law, the credit order for the lending bank is considered credit security like a guarantee.
International
In Switzerland , the credit order is regulated identically to German law in Art. 408–411 OR . However, the credit order must be made in writing here. Similar regulations as in Germany can also be found in Art. 7: 863 BW ( Netherlands ), Art. 1958 Codice civile ( Italy ), Art. 629 Paragraph 1 CC ( Portugal ) or Art. 870 ZGB ( Greece ). In Austria, however , the credit order is not regulated by law; It is controversial whether the guarantee provisions of §§ 1346 ff. ABGB apply analogously . According to Section 9 (1) of the Equity Replacement Act, a lender is deemed to be a “registered shareholder” of a group if he does not have a stake in the borrowing company but grants the loan on the instructions of another group member.
Individual evidence
- ^ Peter Rösler / Thomas Mackenthun / Rudolf Pohl, Handbook of Credit Business , 2002, p. 226
- ^ Wilhelm Meuser, Guarantee and Loan Order , 1912, p. 22
- ^ Wilhelm Meuser, Guarantee and Loan Order , 1912, p. 22
- ↑ Dieter Nörr / Shigeo Nishimura (eds.), Mandatum and related , 1993, p. 71
- ^ Gaius Digest 17, 1, 2, 5
- ^ Peter Rösler / Thomas Mackenthun / Rudolf Pohl, Handbook Credit Business , 2002, p. 845
- ^ Peter Rösler / Thomas Mackenthun / Rudolf Pohl, Handbook of Credit Business , 2002, p. 226
