Loan brokerage
Loan brokerage (or loan brokerage ) is the commercial brokerage of loans to (future) borrowers . Loan brokering is subject to legal regulations in many countries, especially if the borrower is a consumer .
General
Credit intermediary
Credit brokerage is carried out through credit intermediaries . In addition to being approved as credit intermediaries according to Section 34c GewO, they can also be approved as brokers or insurance agents . Employees of credit institutions or other financial intermediaries act as vicarious agents of their employers in accordance with Section 278 of the German Civil Code . This in turn needs its own permission according to § 34c GewO.
There are also specialized platforms for loan brokerage on the Internet . These save the terms and conditions of the affiliated banks (especially direct banks ) for standardized loans. The customer receives an overview of the conditions of the loan offers that are possible for him and can choose a provider of his choice.
A third field of credit intermediaries is so-called "social lending". Specialized providers try to bring investors and loan seekers together without involving a bank. However, the problem here is that it is often not possible for the individual investor to obtain comprehensive information on the solvency of the loan seeker. Main article: Peer-to-Peer Credit .
Approval as a credit intermediary is regulated by law in various countries. Admission requirements can be based on proof of competence, the existence of liability insurance , previous impunity or membership in associations.
Loan agency agreement
The credit agency agreement (or loan agency agreement ) regulates the rights and obligations of the credit intermediary and customer. Regulatory areas can u. a. be:
- Definition of the loan to be brokered
- Regulation of the agent's commission claims
- Time limitation and exclusivity of the agent
- Further regulations, such as data protection etc. Ä.
In many countries, formal requirements , regulations on minimum content and restrictions on freedom of contract through legal requirements exist with regard to the loan brokerage agreement .
Loan agency commission
The loan agency commission (or loan agency commission ) represents the remuneration of the intermediary for his agency services. The lender and / or the borrower may be obliged to pay. The commission is typically paid as a one-off payment when the loan is obtained. It is also possible to pay the commission in installments during the term of the loan, but this is very unusual. If legally permissible in the respective country, agency commissions that are independent of success can also be agreed. However, in many countries this is prohibited by law.
EU guidelines
The European Union has regulated the legal framework for loan brokerage to consumers in the Consumer Credit Directive 2008/48 / EC of April 23, 2008.
Loan brokerage in Germany
Legal bases
First of all, the activity as a credit intermediary requires the approval of the competent authority, these are usually the trade offices at the location of the business premises. Permission is granted in accordance with Section 34c, Paragraph 1, No. 2 of the Trade Regulations , the legal designation is loan broker . A permit is only granted if the applicant has the reliability required for a commercial enterprise of this type and can demonstrate orderly financial circumstances (Section 34c (2) GewO). Commercial means that the credit intermediary must prove that the type and scope of business is commercially set up for permanent, independent activity with the intention of making a profit.
This means that the legal provisions for brokers and some special provisions apply to credit intermediaries . According to Section 655a of the German Civil Code, the credit intermediary may only provide a consumer with a consumer loan contract against payment if the contract is in writing and the total remuneration is stated as a percentage of the loan amount ( Section 655b of the German Civil Code). The consumer is only obliged to pay the remuneration to the credit intermediary when the loan has been paid out ( § 655c BGB) and a revocation by the consumer ( § 495 BGB) is no longer possible. Additional fees, apart from the expenses actually incurred, may not be demanded ( § 655d BGB). Thereafter, flat-rate expenses without being proven in detail are not permitted. In addition, the agent has to comply with the pre-contractual information obligations mentioned in Art. 247 § 13 EGBGB . A loan brokerage contract that does not meet the requirements - in particular the written form requirement - is void ( Section 655b (2 ) BGB). This provision restricts the general provisions on the reimbursement of expenses by brokers according to Section 652 (2) BGB in favor of consumers. Overall, these provisions are not mandatory; they may not be deviated from in specific individual cases ( Section 655e BGB). Only consumers are protected, not companies and the self-employed who want to use the loan for their business operations. Another prerequisite is that the credit broker is active as an entrepreneur within the meaning of Section 14 of the German Civil Code.
These regulations serve in particular for transparency, are intended to protect the consumer from being too hasty and to limit the remuneration to a few, verifiable types of fees. In addition, the consumer enjoys even more extensive protection. If the loan brokerage contract has come about in a special form of distribution (e.g. in distance selling or during a home visit ), the consumer has the right of withdrawal according to §§ 312, 312b BGB. The consumer can counter fraudulent deception by the credit intermediary by contesting his declaration of intent (Section 123 BGB). Deception is any behavior on the part of the credit intermediary that is objectively misleading or entertaining an error and thus affects the image of the loan applicant. The exploitation of the business inexperience of a consumer can be immoral and thus void according to § 138 Abs. 2 BGB.
Brokerage
Credit intermediaries do not grant loans themselves, but rather act as intermediaries for lenders such as credit institutions. The loan seeker therefore concludes two contracts, namely the loan brokerage contract with the credit intermediary and the credit contract with the credit institution. The loan brokerage is only successful when the loan has been disbursed and the borrower no longer has any possibility of revocation according to § 495 BGB. Only then are the credit intermediary's remuneration due. Any type of prepayment that should be due prior to the loan being paid out is prohibited by law. The payment of the commission after the successful loan brokerage is either to be paid directly to the loan broker or is taken into account in the loan agreement (so-called "packing").
Finder's fee
The credit intermediary regularly agrees a commission for the successful mediation of a loan with the lender. The consumer does not incur any additional direct fee for the activity of the credit intermediary; however, the corresponding costs incurred by the bank as a result of the intermediation are usually converted over the total price. In the rare event that the consumer should pay this (or an additional) commission, the type of remuneration is standardized by law. In addition to the remuneration for the actual mediation, only the expenses incurred may be demanded from the consumer (§ 655d BGB). For example, it is not permitted to make contact via telephone value-added service numbers (i.e. 0190 or 0900), as this incurs fees, regardless of whether a loan brokerage contract is concluded later. If no loan could be brokered or the brokerage contract was void, there is no entitlement to commission.
history
Until the end of the 1990s, the focus of the activities of credit intermediaries in Germany was on the procurement of installment loans for private customers with poor credit ratings . These often charged the loan commission from the borrower. Only a few providers had niches for e.g. B. commercial borrowers or property developer financing.
A major exception was sales by the mortgage banks . These traditionally only have a small share of direct business. The greater part of the sales relating to construction financing was carried out via the corporate or group-owned commercial banks and other sales partners who acted as credit intermediaries for the first-class loan. With the Consumer Credit Act of 1990, specific legal rules were made with regard to credit brokering to consumers. These regulations in §§15–17 VerbrKrG were adopted into the BGB in 2002.
With the development of the Internet as a mass medium, a new group of credit intermediaries was created who practice “social lending”. Loan seekers and private lenders meet on internet platforms such as the US American “Prosper” or the German “Money4Friends” (now discontinued) because the number of frustrated bank customers is growing. In the meantime, in addition to lending platforms that concentrate on brokering loans between private individuals (Auxmoney, Lendico, Smava), there are also platforms specifically for corporate loans (kapilendo, Funding Circle).
Some platforms have specialized in the procurement of cheap loans for builders and home buyers. These dominate today's image of credit intermediaries. By buying large amounts of credit from banks and taking on customer advisory tasks, these generate price advantages. With these new providers, the credit commission is paid by the credit institution.
The largest credit brokers in Germany are Interhyp , Deutsche Vermögensberatung , Dr. Klein & Co. , MLP and Swiss Life Select (formerly AWD).
Loan brokerage in Austria
In Austria, credit brokering to consumers is regulated in the Broker Act. According to this, a personal loan broker is someone who mediates commercially for credit institutions credit transactions within the meaning of Section 1 Paragraph 1 No. 3 of the Banking Act (BWG) that are not secured by mortgages . The agency contract must be in writing and must contain a series of minimum information. These are the minimum details for consumer loans and the indication of the (maximum) agency commission. The agency contract is limited to four weeks.
UK credit agency
In the UK , credit intermediation has been governed by the Consumer Credit Act 1974 since 1974 , which was revised as the Consumer Credit Act 2006 in 2006 .
Web links
Individual evidence
- ↑ Herbert Tröndle / Thomas Fischer, StGB , 50th edition 2001, § 263 Rn. 6th
- ↑ OLG Stuttgart, NJWE - WettbR 2000, 11; Judgment of June 18, 1999 - Az. 2 U 233/98
- ↑ https://dejure.org/gesetze/VerbrKrG
- ^ The time of November 1, 2007, credit from Schnucki
- ↑ Alternative to the bank - loans from private to private. In: Deutschlandfunk. Retrieved May 24, 2016 .
- ↑ Karsten Seibel: How to get one million euros in nine minutes . In: Welt Online . April 1, 2016 ( welt.de [accessed on May 24, 2016]).
- ↑ Federal Law Gazette No. 262/1996 : Austrian Broker Act
- ↑ Banking Act, Federal Law Gazette No. 532/1993