With credit lending , a bank is liable for the obligations entered into by its bank customers towards third parties. The third party is the bank customer's creditor and is not sure whether his claims can be settled by the customer. In order to guarantee this, the bank is responsible for the obligation of its customer in the form of guarantee credits , letters of credit , return credits or (earlier) acceptance credits in favor of the obligee if the obligee is unable to meet them. To do this, she concludes a loan agreement with her customer, who thereby becomes her borrower. In the case of a guarantee credit, for example, a bank acts as a surety and is liable for the liabilities entered into by its borrower towards his creditors. The loan can be followed by a money loan, for example with a cash back loan. Despite some banking crises , the creditworthiness of credit institutions can be classified as very high.
The individual forms of loan lending are banking within the meaning of (1) No. 2 and 8 KWG . In the case of a loan, the loan agreement specifies in particular that the bank is entitled to further charge its borrower with the claim in the event that a third party claims its liability. In the case of guarantees , this results from their accessory nature according to (1) sentence 1 BGB . The credit institutions issue a conditional promise to pay as part of the loan, as the creditor can only claim if he has not received payment from the bank customer. For this reason, all types of loan loans in the bank balance sheet belong to the contingent liabilities that are recorded “under the balance sheet” ( in conjunction with (7 ) HGB ) and are included in the business volume.
- The litigation guarantee is intended to enable or prevent the provisional enforceability of a judgment . According to ZPO , a security deposit is to be effected in the form of a written, irrevocable, unconditional and unlimited guarantee from a credit institution authorized to conduct business in Germany or by depositing money or certain securities .
- Anyone who owes taxes , customs duties or other charges can request a deferral from the tax or customs authorities , which, however, should only be granted in return for a security deposit ( AO ). According to (1) no. 7 and (2) AO, this can be done through an absolute guarantee from a domestic bank or insurance company (“tax guarantee”).
- If a consumer makes down payments to a tour operator , BGB provides for a legally binding security of the down payment or advance payment of the travel price. This can be guarantee / warranty of insurance of banks or in the form of travel security note happened.
- If a property developer in the building industry receives a down payment from the client , this must be secured by providing a bank guarantee or taking out insurance in accordance with Paragraphs 1 and 2 MaBV .
According to equity .(1) of the German Civil Code (BGB), a suitable guarantor is who has assets appropriate to the amount of the security deposit and his place of jurisdiction in the EU. The quality of the guarantee and the creditworthiness of the guarantor must meet high demands; the guarantees given by a bank must be secured by their
- Thomas Hartmann-Wendels / Andreas Pfingsten / Martin Weber, Bankbetriebslehre, 2007, p. 167
- Alexander Retemeyer, Security by bank guarantee , 1995, p. 76 ff.
- § 239 BGB speaks of "inland", but the overwhelming opinion in the literature is based on the EU; see. Otto Palandt / Jürgen Ellenberger, BGB commentary , 73rd edition, 2014, § 239 BGB marg. 1
- BT-Drs. 14/4722 of November 24, 2000, draft law on the reform of civil procedure , p. 75