Personal security (credit)
Personal safety is banking a collateral at which one or more natural or legal persons with their assets for the liabilities of a debtor stand and therefore against the creditor contract in case of non-payment to the repayment commitment. The opposite is factual or real security .
General
Both types of collateral have in common that they may only be used in the event that the loan and / or loan interest is not paid in accordance with the contract by the debtor ( borrower ) - the so-called collateral case. While in the case of property collateral the creditor ( lender ) can cover his credit claim by realizing the collateral in the event of non-payment, in the case of personal collateral, it is repaid by third parties in the event of collateral. In order to reduce or completely eliminate the risk of default for the lender, the borrower undertakes in a security agreement with the lender to bring in at least one liable third party. The prerequisite is that the borrower has a liability to a lender ( currency ratio ) and therefore the third party ( protection seller or intercessionaire) declares that he is willing to accept this liability from his own assets ( coverage ratio ).
Types and legal issues
The BGB only recognizes the guarantee (§ 765 ff. BGB) and the guarantee-like loan order ( § 778 BGB) as the only personal security . The other types of guarantee , (cumulative) assumption of debt and letter of comfort have arisen from Kautelar practice . The bill of exchange guarantee as a further type results from the bill of exchange law . While the guarantee is dependent on the existing claim ( Section 767, Paragraph 1, Clause 1 BGB; accessory ), the other types are independent of the claim . The contract establishing the personal security (surety contract, guarantee contract, debt assumption contract , letter of comfort) is a contract under the law of obligations that is concluded in the external relationship between the security provider and the lender. By assuming personal security, the parties create an obligation that entitles the lender to demand payment of the contractually agreed sum of money from the security seller in the event of a security case within the meaning of § 241 BGB.
In the case of the guarantee, § 766 BGB requires the written form ; only in the case of guaranteeing merchants , the guarantee is free of form in the case of a commercial transaction ( § 350 HGB ). But also here and with the other types, for reasons of proof, the liable collateral provider should declare to the lender in writing that in the event of non-payment by the borrower, he will settle his liability to the lender from his own assets. The third party acts as security provider alongside the credit relationship between the lender and the borrower. The joint and several debt is not a personal security, since the jointly and severally jointly liable are equally liable as debtors next to each other, but the joint and several security debt is because the joint and several debtors are only jointly liable for security reasons. If in individual cases it is doubtful whether the parties involved wanted a guarantee or other personal security, the relevant contractual will must be determined through interpretation .
According to Art. 204 No. 1 Capital Adequacy Ordinance (CRR), credit derivatives can be recognized by the protection buyer as collateral “without security” (ie personal security) if the credit risk is transferred directly to one or more third parties. According to Art. 204 CRR, credit events in the credit derivative must include the borrower's failure to make payments, its bankruptcy or similar events, and debt restructuring associated with debt relief or deferral . According to Art. 399 No. 1 CRR, credit derivatives in this form are equivalent to guarantees.
Accounting
From the perspective of the liable collateral provider, sureties, guarantees and obligations are contingent liabilities that a company reporting on its balance sheet must take into account. According to Section 251 of the German Commercial Code in conjunction with Section 268, Paragraph 7 of the German Commercial Code, they are to be noted “under the balance sheet”. In the case of letters of comfort, this obligation to note only applies to the "hard" letter of comfort.
Banking Regulations
In accordance with customary banking practice, credit institutions check the required collateral with commercial diligence for its intrinsic value before accepting it. The collateral valuation is based on the requested lending documents . In the case of personal collateral , they must therefore check the economic situation of the liable protection seller as part of the credit check as well as that of the borrower (Art. 183 in conjunction with Art. 171–173 CRR). According to Art. 203 CRR, personal security is "security without security provision". If a bank refrains from checking the security seller in whole or in part in the case of personal security, i.e. if it does not ask the jointly liable security seller in particular about his current and future financial possibilities, then in case of doubt under civil law it is to be assumed that she is aware of the objective facts and circumstances that justify the gross financial overload Was familiar with the situation at the time the contract was signed or was consciously closed to it. Guarantees are then immoral and therefore according to Section 138 of the German Civil Code (BGB ) is void , this also applies to the assumption of debt and the assumption of joint liability. Under banking supervisory law , this personal security cannot be recognized as a credit risk mitigation technique according to Art. 194 ff. CRR.
Individual evidence
- ↑ Christian Förster, The Fusion of Guarantee and Guarantee , 2010, p. 205.
- ↑ Peter Bülow, Law of Credit Securities , 2012, p. 18.
- ↑ Julian Teves, Die Mobiliarsicherheiten in German and Romanian Law , 2004, p. 33.
- ↑ a b Peter Bülow, Law of Credit Securities , 2012, p. 275 f.
- ↑ BGH WM 2000, 410, 412
- ↑ BGH, judgment of October 14, 2003 - XI ZR 121/02
- ^ BGH, judgment of November 14, 2000 - XI ZR 248/99
- ↑ BGH, judgment of January 25, 2005 - XI ZR 325/03
