Borrowing by the borrower is always preceded by a loan agreement , be it in writing or, in exceptional cases, through conclusive action, e.g. in the case of overdrafts . The credit or loan agreement regulates the conditions under which the lender is willing to grant a certain loan. For this purpose, agreements are made on the type of loan , loan amount , loan term , loan interest and any loan collateral . Like all contracts, the loan agreement requires that both contractual partners have full legal capacity. If the borrower is a consumer within the meaning of BGB, the special provisions on the consumer loan contract (§ ff. BGB) apply. According to this, the consumer loan contract is a consumer contract for the payment of a monetary loan.
Consumer loan agreement
The consumer loan contract must be concluded in writing according to nullity due to a lack of form. The application and acceptance of the contract can be declared in writing. The contract declaration to be signed by the consumer must contain the minimum information listed in Section 492, Paragraph 1, Clause 5, No. 1–7 of the German Civil Code. This includes u. a. the statement of the effective annual interest rate and all costs of the loan. The lender has to provide the borrower with a copy of the contractual statements. Since the law does not prescribe a specific form, a copy of the contract is sufficient. The lender is responsible for the receipt of the copy, so it is advisable to have the receipt confirmed in writing. This is important because without receipt of the copy in accordance with Paragraph 2, Clause 3 of the German Civil Code, the cancellation period does not begin. Defects in form lead to the nullity of the contract according to BGB. If the consumer loan contract or the power of attorney on which it is based is not in writing, the contract is void. This nullity can only be cured under particularly strict conditions.BGB, the electronic form or non-written forms lead to
A co-borrower acts as a further borrower in addition to the borrower if, irrespective of the specific designation in the loan agreement, he generally has his own objective and / or personal interest in the borrowing and is essentially equally entitled to the disbursement or use of the credit institution May co-decide on the loan amount. The co-borrower must therefore fulfill the decisive functions of the other borrower and must not merely take on the security function in the context of assuming a debt. The decisive factor, however, is not the designation as a co-borrower in the loan agreement, but the relevance of the wording of the loan agreement and the consideration of the interests of the contractual partners.
The special protection purpose for consumers does not apply if legal persons such as companies or legal forms under public law appear as borrowers. The law places higher professional requirements on these borrowers and therefore does not provide for any special regulations for loan agreements. Here, the unrestricted freedom of contract of the law of obligations in the BGB, to which credit agreements belong. There is only an exception if, in the case of loans to this group of borrowers, consumers appear to be jointly liable (joining of debt , joint and several debtors ); then the comprehensive consumer credit regulations apply.
Banking regulatory issues
The terms credit and borrower are of central importance for credit institutions and banking supervisors , since the scope of their definition depends on the reporting and other regulatory consequences. For regulatory purposes, the term borrower is assumed to be known in (2) KWG. In Paragraph 1 of the Large Loans and Millions of Loans Ordinance (GroMiKV), the term borrower for the purposes of the million dollar loan ( KWG) is legally defined by a closed list . Most important of all, in Section 14 (1) No. 1 GroMiKV, is the note that in the case of credit claims ( money lending ) the debtor is to be regarded as the borrower. This also applies to sureties , guarantees or other warranties ( loan loans) for claims by third parties (Section 14 Paragraph 1 No. 3 GroMiKV). The borrower is therefore the address against which a bank bears the counterparty risk. Section 14, Paragraph 2 of the GroMiKV provides further rule assumptions regarding the term borrower. On January 17, 2011, BaFin issued a draft circular on the issue of who is considered to be the borrower of constructions such as investment shares or securitisations . The BGH sees the borrower as the debtor who is obliged to repay and who first obtains the right to disbursement of the loan from the lender.
The question of the extent to which different borrowers are to be grouped together due to control or economic dependencies is answered in Section 19 (2) KWG with the definition of the borrower unit . The Capital Adequacy Ordinance (CRR) often uses the term borrower, but does not define it. According to Art. 209 (3c) CRR, the claims assigned or pledged by a borrower to a bank (e.g. in the context of a global assignment ) must be diversified and must not have a significant positive correlation with the borrower . Art. 392 CRR uses a different aggregate of borrowers for large exposures , namely the group of connected customers .
Although a borrower mainly assumes obligations from a loan agreement - particularly because of the repayment obligation - he is also entitled to some rights. This includes in particular the right to disbursement of the loan amount if the disbursement requirements are met, and the right to the return of any securities after repayment of the loan. Borrowers can lend on items as collateral, with the credit institutions setting a lending value and a lending limit and thus limiting the loan amount. The loan can be named after the loaned item (e.g. real estate loan , car loan ).
Obligations of the borrower
Above all, the borrower undertakes to repay the loan amount and the accrued interest on the agreed payment dates, but also to disclose his economic circumstances for the entire duration of the loan. In addition, the borrower enters into additional contractual obligations, which are described by the term covenants . This also includes informing the lender about any changes of a legal or economic nature that are likely to affect the credit relationship ( significant deterioration in the financial situation ). Some obligations are not expressly mentioned in the loan agreement, but become part of the contract through the inclusion of the terms and conditions . Therefore, the borrower is obliged to read the terms and conditions carefully.
- Nikolaus Demmelmair: The large loan, million dollar, and organ loan regulations . 6th edition. Sparkassenverlag, 2011, ISBN 978-3-09-305663-5
- Beck, Samm, Kokemoor: Law on the Credit System . KWG commentary with materials and additional regulations. CF Müller, Heidelberg [loose-leaf collection, 149th update December 2010], ISBN 978-3-8114-5670-9
- BGHZ 146, 37, 41; BGH, judgment of December 16, 2008 - Az .: XI ZR 454/07
- BGH WM 2000, 2371, 2372
- BGH WM 2001, 1863, 1864
- BGH NJW 1996, 2156
- BGH NJW 1996, 2156