The lender is a natural or legal person who grants a loan to the borrower . The law speaks of lender (§ § 491 ff. BGB ), further designation is creditor .
Types of Lenders
Credit is already granted in many life situations in which those involved may not be aware of it. All contractual services that are initially provided without the intended consideration already constitute a loan. This includes prepayment , down payment , advance payment ( customer credit ) or delivery under retention of title as well as leaving a letter or supplier credit . There is also a private lender for personal loans or when paying in savings or other bank balances .
Commercial lenders are in particular credit institutions . According to Section 1 (1) No. 2 KWG , the granting of money loans and acceptance credits ( credit business ) is considered banking business and requires approval from BaFin (Federal Financial Supervisory Authority) according to Section 32 KWG . Doing banking without a permit is a criminal offense ( Section 54 KWG). In order to be able to assess the credit risk , credit institutions check the creditworthiness of the borrower and require the submission of loan documents for this purpose . If the creditworthiness of the future borrower is insufficient, the credit institution can demand certain loan collateral to secure the loan .
Loans among private individuals that are not used for commercial purposes and are not subject to consumer loan law do not require any formal requirements and can therefore be concluded orally. For reasons of proof , however, it is advisable to put credit agreements in writing and to make essential agreements. This includes in particular the loan amount and type of loan, the interest rate and the repayment . Payment dates agreed in advance must be contractually stipulated for the interest rate and repayment. The loan agreement comes into force when it by lenders and borrowers together by signature adopted has been.
One of the few contractual obligations incumbent on the lender is - in addition to the payment of the loan amount - the obligation to provide advice when it comes to credit institutions. Since November 2009, as lenders, they have been legally obliged to adequately explain the individual contractual provisions of a consumer loan agreement to the borrower in accordance with Section 491a (3) BGB . The Bundestag commented in detail on the obligations in its explanatory memorandum. According to this, “explain” means that the lender has to make the contract and the terms of the contract understandable to the borrower. The scope of the explanation depends on the complexity of the specific loan transaction and also on the borrower's ability to understand it, insofar as this is recognizable to the lender. However, this obligation does not require a direct conversation between the contracting parties in which the lender would have to get an idea of the person who is the borrower. Written or telephone explanations are therefore also possible. The fulfillment of the explanation requirements should be based on the understanding of the average borrower. The more difficult it is for the average borrower or, if recognizable, also for the specific borrower to understand a contractual clause, the higher the requirements for fulfilling the obligation to provide explanations. Likewise, the obligation to provide explanations increases if the lender includes newly designed or unusual contractual clauses in the contract.
The explanation is to be distinguished from the advice on the basis of a special advice contract and remains behind. The explanation is not about the fact that the lender advises the borrower to a contract that is optimally tailored to his purposes and financial circumstances. Rather, the lender should present the characteristics and consequences of the contracts offered so that the borrower can decide on his own initiative on an informed basis. The aim of the explanation is to enable the borrower to assess whether the contract is useful for him or not based on his financial circumstances and the purpose pursued with the contract.
Due to the regulation, the lender is not obliged to check whether the purpose pursued by the borrower makes sense for him. Section 491a (3) sentence 2 BGB specifies this obligation to provide explanations. According to the consumer credit directive, the following must be explained in particular: Pre-contractual information (VVI) according to paragraph 1, the typical effects of the contract and the main features of the contract types offered. The term “if applicable” makes it clear that Section 491a BGB does not exhaustively list all the explanatory requirements . Further explanations and, in particular, duties to provide information remain unaffected by the provision. This applies in particular to such disclosure obligations that the case law has elaborated. This case law is not to be changed by the addition of paragraph 3. On the other hand, “if necessary” also means that not all of the information listed in sentence 2 must be explained. If there is no reason to explain the pre-contractual information, for example because the borrower has understood it, no additional explanation is required.
The lender's main risk is credit risk . In particular, there is a risk that the loan amount granted, together with the agreed interest, will not be paid in full, not on time or not at all. In many cases, this risk can be covered by loan collateral or credit insurance.
- ↑ Bundestag printed matter 16/11643 of January 21, 2009, p. 78 f. (PDF file; 2.27 MB)
- ↑ cf. Bamberger / Roth / Rohe, BGB, Commentary, 2nd edition, § 488 Rn. 80 ff .; Munich Commentary / Berger, BGB, 5th edition 2007, before § 488 marginal no. 73 ff.