Loan Agreement (Germany)
The owner of a movable property does not have to use it himself, but can let others use it. This is possible through a loan agreement (free of charge), rental agreement (against rent payment), lease agreement (against rent), leasing (against leasing fee) or loan agreement (against credit interest ). Colloquially, lending and renting are often confused, so that the rental car is always a rental car if it is made available for use with a rental fee. Likewise, the colloquial “loan” of food (e.g. chicken eggs ) from the neighbor is not a loan, but a loan because it is not the “loaned” (already used eggs) but other eggs in the same quantity and quality owed ( generic debt ).
In German civil law , the loan agreement is regulated by German Civil Code. The contracting parties are called lender or lender as the owner of the item to be lent and borrower or borrower . Through the loan agreement, the lender remains the owner and becomes the indirect owner , the borrower becomes the direct owner of the item. The law assumes a limited loan in (1) of the German Civil Code (BGB) . After the loan period has expired or after termination by the lender, the borrower must return the borrowed item to the lender ( (1) BGB). In contrast to the loan agreement, the same thing must be returned when borrowing . During the loan period, the borrower may only use the item in accordance with the contract; he is not entitled to pass the item on to third parties ( BGB).
The borrower does not have to pay any compensation for wear and tear and deterioration of the loan item if these result from use in accordance with the contract. In the event of damage caused by non-contractual consumption, the borrower's liability is based on the general law on damages . In contrast, according to BGB, the lender is only responsible for intent and gross negligence . Furthermore, the lender must pay the borrower for the damage if damage occurs if he has fraudulently concealed a defect in the item, BGB. If there are maintenance costs for the item (e.g. for an animal), these are regularly borne by the borrower in accordance with German Civil Code.
The loan is an imperfect bilateral contract . The regulations for the Synallagma , such as the objection of the non-fulfilled contract according to BGB, are therefore not applicable. The lender is obliged to allow the loaned item to be used free of charge for the agreed period. The fact that the leasing is free of charge distinguishes the lending contract in particular from rent and the loan , in which the leasing of a reasonable item is subject to a fee.
The lending fee is colloquially referred to as a fee for the temporary provision of an item for use (use, rental of items, utilization). However, since a loan is always free of charge, it can therefore be no rental fees, rental means in common parlance actually volunteered .
The lending fees for public libraries that were common in the 1950s, first for pensioners and students, then also for children and finally for all borrowers, have been abolished for some time . In some cases, however, one-time or annual fees are charged.
Lending fee regulation in the GDR
The colloquial term was imprecise in that the ZGB defined loan as free use in the socialist sense and referred to the payment for use in the lending service as a price.
It was not until the AO No. Pr. 2/1 of June 28, 1968 (GBl. II, p. 573) that the term "rental fee" was replaced by the general term fee (e.g. fees for the rental of other movable objects such as sports equipment Cameras, etc., fees for services of the lending libraries). For so-called loan packaging, wear and tear amounts were usually agreed.
The lender is privileged due to the fact that the lender is free of charge. He is liable to BGB only for intent and gross negligence in the context of power failure law . However, this rating will have to be transferred in the event of damage that is compensated for in the context of tort law and is caused by the loan agreement, and here, too, you will only be held liable for willful intent and gross negligence.
Conversely, the borrower is fully liable for the loan item if it is damaged or lost by the borrower during the loan.
In the museum context, the loan takes a separate form. Literature and common practice distinguish three forms - the short-term loan , the long-term loan and the permanent loan - depending on the duration. The latter is often synonymous with long-term loan. A loan gives the opportunity to make cultural goods, works of art or other objects accessible to a broad public in a (permanent) exhibition. The so-called curator watches over the loan .
From a legal point of view, a permanent loan agreement only refers to an open-ended loan, whereby a permanent loan as such can also be terminated at any time, taking into account the agreed or statutory termination requirements.
Both short-term and long-term loans are regulated by a simple contract in which the end of the loan period is specified and conditions are made by the lender with regard to the preservation of the object (climate, light). With long-term loans there is a risk that the objects are often treated like museum pieces and it can happen that they are suddenly no longer recognizable as loan items. If the lender withdraws, unforeseen gaps may arise in the inventory. This also distinguishes the loan from the donation .
Another problem with u. U. Loans that have been running for decades clarify the legal succession of a lender, and any investments made by the borrower in the object (e.g. for a restoration ) are lost in the event of a claim. Therefore, regulations for these questions are usually made today for longer-term loan contracts.
- Julius von Staudinger (greeting), Ulrich von Jeinsen , Renate Schaub (editing), Dieter Reuter (editing): J. von Staudinger's comment on the German Civil Code: Staudinger BGB. Book 2, Law of Obligations. Sections 581-606: lease, land lease, loan . Sellier-de Gruyter, Berlin 2013, ISBN 978-3-8059-1128-3 .