Surrender value

from Wikipedia, the free encyclopedia

The surrender value refers to the amount that a life insurer pays the policyholder for this purpose when the policyholder surrenders the rights of the policyholder to future benefits from a life insurance contract.

In the original sense of the word, the insurer “buys back” the rights of the policyholder from the insurance contract from the policyholder. Since the policyholder usually initiates the buyback, it has become common to say that the policyholder “buys back” the contract even though he is the one who is entitled to the payment of the surrender value.

Meaning of the term

In the event of a buyback, the insurer “buys back” the rights contractually promised to the policyholder (cf. Art. 90 VVG Switzerland and Section 169 VVG Germany). The starting point is therefore that the policyholder has rights to future benefits from the insurer under a life insurance contract. If the policyholder gives up these rights, the insurer has to compensate him for these given up rights. Even if it is not legally a purchase , the term “purchase” is used here in technical language. It is an exchange: the insurer pays money to the policyholder if the latter surrenders a right against the insurer. In contrast to the right of surrender in sales law , however, it is not the provider, i.e. the insurer, but the buyer, i.e. the policyholder, who have the right to request the repurchase.

Therefore, the surrender value should correspond to the value of these rights, minus any future contributions to be paid by the policyholder to maintain these rights. This means that if the contract is terminated prematurely, a cancellation fee must be paid that relates exclusively to future mutual claims from the contract. The surrender value is not based on the contributions paid in the past. Therefore, depending on the value of the rights to future benefits from the contract and the future contributions to be paid for them, the surrender value may differ from the sum of the contributions paid up to the termination, as one has nothing to do directly with the other.

In fact, the surrender values, especially at the beginning, are often significantly below the sum of the contributions paid up to the termination. This is due to the fact that the premiums are not only a price for the actual service to the policyholder, but, like any other price, also include margins for profit and, above all, operating expenses (for the price calculation of life insurers according to Section 138 (1) Insurance Supervision Act (VAG ) Germany and Section 18 (3) VAG Austria required by law). Therefore, the value of the future services to be provided from each contract is initially lower than the price charged for them. This can be compared to buying a new car. Its price also includes costs, e.g. B. those of the dealer and his profit, which you cannot get back if you resell the car even after only a short use. The next buyer of the car will only look at its utility value regardless of the new price .

The early termination of a life insurance contract with the payment of a surrender value in accordance with legal requirements has a negative effect on the policyholder, since the surrender value is initially lower than the sum of the contributions paid so far, according to the legal definition . However, by then the insurer had also provided insurance cover, i.e. for all deceased insured persons, in comparison to the contributions, he paid very high benefits, for which he used parts of the contributions from everyone according to the solidarity insurance principle.

Initially increased surrender values

The fact that the surrender values ​​are initially significantly lower than the sum of the contributions paid means that the savings function of the contract is lost in the event of early termination. For this reason, regulations have repeatedly been introduced to initially increase the surrender value compared to the value of the policyholder's given rights. This means that a certain part of the premiums already paid should be retained by the policyholder even if the policyholder is terminated early.

From 1987 the Federal Insurance Supervisory Office obliged insurers to agree with the policyholders initially higher surrender values ​​compared to the legally determined surrender value. With the EU harmonization of the insurance industry, this possibility no longer existed in 1994. Thus, until the VVG was reformed in 2008, the statutory provision that the surrender value had to correspond to the value of the rights given up remained. In Germany, contracts based on the Old Age Assets Act (AVmG) and the Asset Creation Act always had to agree to initially higher surrender values. For contracts concluded since 2008, according to Section 169 VVG, initially higher surrender values ​​must also be agreed. In Austria, Section 176 (5) VVG stipulates the same for contracts from 2007 onwards.

The admissibility of such restrictions on freedom of contract has also been questioned. The legislators of the member states of the EU and the EFTA (thus also Germany, Austria and, to a limited extent, Switzerland) are only allowed to make limited specifications for the design of insurance contracts due to the EU directives. With this in mind, in 2005 the EFTA Court of Justice banned the state of Norway from legally stipulating initially higher surrender values. An examination of the current German or Austrian regulation by the ECJ has not yet been initiated.

Although initially increased surrender values ​​significantly increase the flexibility of policyholders, they have a significant economic disadvantage due to the current legal situation for all policyholders. If a contract provides for a contractually or legally determined surrender value that is above the actuarial reserve determined in accordance with commercial law , the actuarial reserve must be increased to this amount (in Germany e.g. in Section 25 (2) RechVersV . This is done in the implementation of a binding EU legal requirement), which, however, will be abolished by EU Directive 2009/138 / EC in 2016. Abolition is not yet provided for in German law. As a result of this regulation, the agreement of initially higher surrender values ​​will result in additional costs, which ultimately reduce the profit participation of all policyholders. Without this requirement, the insurers could initially offer higher surrender values ​​overall at significantly lower prices. Therefore, insurers are very reluctant to agree surrender values ​​that are higher than the otherwise applicable actuarial reserve. The Supreme Court has provided in its judgment on the issue of surrender values in 2005 despite the lack of contractual arrangements (at cash surrender value) a judicial contract amendment only to the extent of hälftigen division of the difference between a reimbursement of savings contributions and the originally scheduled redemption value to both the interests of the remaining as well as the outgoing policyholders. The Federal Court of Justice took into account that the pre-financing requirements for the services provided when the contract was concluded are ultimately always allocated to the prices charged by the insurer. Ultimately, the only question that matters is how this is fairly divided between the early departing and remaining policyholders.

Reimbursement in contrast to the surrender value

Cancellation allowances based on contributions paid in the past are called "rebates". However, the law provides for the payment of a surrender value, not a refund. This means that citizens of legal capacity are not legally released from the responsibility they assumed when they signed the contract, but are given the same economic status in the event of termination as they would have been if the contract had been fulfilled.

A reimbursement is paid if the contract was ineffective from the beginning and therefore the contract has to be reversed according to the principles of the right to enrichment .

Agreement on the surrender value

The surrender value is normally agreed by explicitly agreeing each surrender value on each termination date in the contract document (surrender value table, guarantee value table). The contractually agreed surrender value must not be lower than the legal minimum surrender value ( Section 169 (3) VVG Germany, Section 176 (3) VVG Austria, the VVG Switzerland in Art. 91 (3) requires "appropriate" surrender values ​​under the supervision of the supervisory authority ) be. In rare cases, a specific surrender value is not agreed for each year, but rather the statutory minimum surrender value. The statutory minimum surrender value, which is based on the current value of the contract, must then be determined on each termination date in accordance with the then existing value relationships of the contract. According to the law, the fair value may still be reduced by an appropriate deduction to determine the statutory minimum surrender value, if this has been agreed. Specifically agreed surrender values ​​above the statutory minimum surrender value can be freely agreed; in this respect, it is irrelevant here whether a deduction is agreed or not, as long as the resulting surrender value is not below the statutory minimum surrender value.

Legal minimum surrender value

German, Austrian and Swiss law provide for certain minimum requirements for surrender values. Swiss law leaves the determination of the appropriateness of the surrender values ​​to the supervisory authority. German and Austrian law provide more detailed requirements in Section 169 VVG (Germany) and Section 176 (3) VVG (Austria). However, these requirements are only minimum standards, from which, in accordance with Section 171 VVG (Germany) and Section 178 (2) VVG (Austria), the policyholder may deviate from. This is the normal case in Germany, i. H. the surrender values ​​agreed by German insurers with the policyholders in the contract documents through individual information are usually more favorable for the policyholders than required by law. The legal requirements in Austria usually lead to higher values ​​than the German ones and are therefore usually contractually agreed.

In principle, Germany and Austria stipulate that the surrender value is to be determined at least on the basis of the calculation basis of the premium calculation . Germany refers to the reserve capital , Austria to the current value of the insurance determined in accordance with the recognized rules of actuarial mathematics. The application of the "recognized rules of actuarial mathematics" simply means that the fair value is to be calculated prospectively, taking into account all future cash flows of the contract discounted to the calculation date, as is also explained in the German legal explanation for this law. This also corresponds to the meaning of the term “cover capital”. Since the calculation bases for the premium calculation are fixed when the contract is concluded, mainly based on the information in the contract, a statutory minimum surrender value for each year clearly results when the contract is concluded.

However, this means that the law requires that insurers grant “guaranteed” surrender values ​​that can no longer be contractually made dependent on any event. It is doubtful whether such a legal requirement corresponds to the law in the EU and EFTA. This may mean that the provision must be interpreted in conformity with Community law and that there is therefore actually greater freedom in the contractual agreement than the text of the law suggests.

In Germany, Section 169 (6) VVG allows the insurer to lower the surrender value to be paid out in certain cases.

The value calculated in this way may still be reduced by a contractually agreed and appropriate cancellation deduction (repurchase discount ). The resulting value is the statutory minimum surrender value, which may not fall below the contractually agreed value. The indefinite legal terms used in the law , in particular ' appropriate ', had not been clarified in court for a long time. As a result, clauses previously used in a number of proceedings were discarded. The Federal Court of Justice also demanded that the deduction should be stated as a euro amount for the contractual agreement, if at all possible. (Az. IV ZR 201/10).

Zillmerization and surrender value

Due to the agreement of the surrender values ​​in the form of a table or as a fair value, the surrender value is not agreed today in Germany, Austria and Switzerland as a value to be determined by Zillmerization . Until 1994 z. In Germany, for example, it is legally stipulated that the surrender values ​​had to correspond to the actuarial reserve specified in the business plan in accordance with commercial law principles . The actuarial reserve was mostly determined by zillmerisation due to commercial law obligations. Since the VVG and VAG were changed in 1994, from a legal point of view, surrender values ​​no longer have anything to do with commercial law proceedings, not even with Zillmerisation, but are contractually agreed separately. From a legal point of view, however, the term “zillmerized surrender values” is still incorrectly referred to. In particular, the statutory minimum surrender value, both the fair value up to 2008 and the reserve capital thereafter, is not determined by zillmerization. However, it is due to the principle of the surrender value (in contrast to the reimbursement) that this is initially less than the sum of the contributions.

In practice, the actuarial reserve of a contract usually corresponds to the surrender value agreed in the contract, unless circumstances arise after the conclusion of the contract that require a deviation in the actuarial reserve under commercial law.

Offsetting of acquisition costs

Since surrender values ​​only take into account future rights and obligations from the contract and are usually finally determined when the contract is concluded, actual acquisition costs cannot be taken into account or “offset” against the surrender values. The surrender value is as it is agreed between the insurer and the policyholder, without any "offsetting" or "offsetting". The misunderstanding in this regard in the public discussion is based on the fact that the principle of repurchase is being confused with that of reimbursement, in which, if necessary, initial closing expenses could be deducted from the sum to be repaid of the contributions made so far.

Transparency and consumer protection

The often-voiced criticism of the transparency of the surrender values ​​is due to the fact that the agreement on the surrender values ​​(surrender value table) was usually not handed over to the policyholder before the contract document was sent. For this reason, the details of the agreed surrender values, in particular their initially low amount compared to the contributions paid, were often not discussed in the consultation with the agent when the application was made. Many policyholders did not read the contract document carefully and thus used their z. B. In Germany at that time there was no legal possibility of objecting to the details of the contract within 14 days if the details of the contract are not satisfied ( Section 5a (1) VVG). Since a buyback is often very disadvantageous, especially in the early stages of a long-term contract, this widespread ignorance leads to concerns from a consumer protection perspective. As a result, it has now been determined in the VVG that all information about the contract, including the contract-specific surrender values, must be communicated to the policyholder before the contract is concluded. In consumer protection circles, however, the assumption underlying current EU law is questioned that consumers are mature enough to judge insurance products themselves, provided they have all the information they need about them. The demand of the EU to be able to offer insurance products to the responsible citizen without any regulation, they make the demand for minimum regulations z. B. in the case of surrender values, in order to take into account the "right to be uninformed". For this reason, the VVG not only stipulates that information must be given about the surrender values ​​before the contract is concluded, but the surrender values ​​have also been comprehensively regulated by stipulating strict statutory minimum values.

Judicial amendment for contracts concluded between 1994 and 2001 with non-transparent agreements on the surrender value

The Federal Court of Justice (BGH) has stated in 2001, the contractual agreements to repurchase values of two insurers invalid. The reason was that the surrender values ​​for the time when they should be zero had not been explicitly agreed and the disadvantage of a surrender during this period was not directly recognizable from the general terms and conditions. Therefore, the relevant clauses of the GTC were ineffective due to a lack of transparency. Due to the similarity of the terms and conditions used by insurers, this decision affects a large number of contracts of many insurers that were concluded between the redesign of the contracts in 1994 (the end of the approval of the insurance conditions by the supervisory authority) and the change following the judgment in 2001. However, if proof of the lack of transparency cannot be provided in individual cases, the terms and conditions and thus also the previous surrender values ​​are still valid. The replacement of the terms and conditions declared ineffective by the insurers for the contracts of this period according to § 172 VVG was also declared ineffective by the BGH 2005, whereby the problem was that the new terms and conditions were the same in content as the ineffective previous ones. At the same time, the BGH determined how the contracts that had become incomplete due to the ineffectiveness of the GTC are to be supplemented by a judge. This amounts to the fact that "half" the disadvantage from the termination is borne by the insurer, but the other half remains with the policyholder. The BGH thus basically confirms the principle of the surrender value as the value of the rights to future benefits and not as a reimbursement of at least part of the contributions paid so far. In the absence of an effective agreement on this, however, this should be somewhat mitigated. A number of policyholders who terminated the relevant contracts before the judgment and received a surrender value in accordance with the terms and conditions that had been declared ineffective, have made additional claims against the insurer on this basis. From the ineffectiveness of the reference value, the BGH concluded that the agreement of a percentage cancellation deduction based on it must also be ineffective.

Further development for contracts concluded before 2008

In company pension schemes , after a first-instance judgment by a labor court and statements by a judge at the Federal Labor Court, the agreement of initially low surrender values ​​can also be problematic for the employer as the policyholder. According to this, the employer could also be liable through no fault of its own and pay the employee compensation for surrender values ​​that were agreed too low, e.g. B. also due to impermissible deductions. Criminally relevant facts on the part of the employer are seen from individual opinions.

In 2006, the Federal Constitutional Court raised concerns about the principle of the surrender value in a decision not to accept a constitutional complaint and discussed a reimbursement of contributions. However, this decision was not made as part of a procedure, i.e. without hearing experts or those affected, as would be appropriate with such complex topics.

The Federal Court of Justice ruled in 2012, not least in response to the decision of the Federal Constitutional Court, that the agreement of surrender values, which are initially zero, is ineffective as an unreasonable disadvantage. The ineffectiveness of the agreements on the surrender value, insofar as they are initially zero, applies to all contracts concluded between 1994 and 2007, regardless of whether the agreements were transparent or not.

With regard to the rulings of October 12, 2005, the Federal Court of Justice explained in a ruling of June 26, 2013 that the halving of the acquisition costs did not just mean the initial acquisition cost surcharges. Rather, the insurer is only entitled to cover the acquisition costs in the amount of half of the initial acquisition cost surcharges. All other acquisition cost surcharges included in the premiums already paid, including those applied in installments, would have to be reimbursed to the policyholder. This affects the "pro rata acquisition surcharges" that are contractually agreed with the policyholder. Normally, however, such agreements do not take place. Rather, ongoing cost surcharges are only separated into administrative cost surcharges and amortization surcharges. Amortization surcharges are not surcharges to cover the closing costs of the relevant amount, but serve to cover the costs of the portfolio. The separation takes place only for the purpose of certain statistical evaluations towards the supervisory authority (BerVersV Nw 216 No. 6). When calculating the reserve capital, the two parts cannot be distinguished.

Furthermore, in September 2013 the Federal Court of Justice ruled that the principles it established for surrender values ​​apply to contracts concluded between 2001 and 2007 and terminated again.

The reform of insurance contract law in 2008

On January 1, 2008, a reformed VVG came into force with effect for the surrender value agreements of all contracts concluded since then. According to this, the surrender values ​​are no longer to be agreed, as before, at least in the amount of the current value of the contract, but the surrender value is to be agreed in accordance with Section 169 VVG in the amount of the coverage capital of the contract, which results from using the same assumptions as in the calculation of the premium. In this context, acquisition costs may only be applied over 5 years within the framework of the expected future expenses and at most in the amount of the maximum zillmer rate . As a result, the surrender values ​​are practically always positive from the start, so that part of the premiums already paid is repaid in the event of a surrender.

literature

Web links

Individual evidence

  1. ↑ Federal Constitutional Court , decision of non-acceptance of February 15, 206, Az. 1 BvR 1317/96 paragraph 65.
  2. ↑ EFTA Court, judgment of 25 November 2005, Az. E 1/05.
  3. ↑ Federal Court of Justice, judgment of October 12, 2005, Az. IV ZR 162/03, paragraph 54 ff.
  4. ↑ Federal Court of Justice, judgment of May 7, 2014, Az. IV ZR 76/11.
  5. ↑ Ortmann, in Schwintowski / Brömmelmeyer (ed.), Practical commentary on insurance contract law, § 169 Rn. 31 ff.
  6. ↑ bundesgerichtshof.de (press release No. 122/12 of July 25, 2012)
  7. ↑ ftd.de ( Financial Times Deutschland ) August 1, 2012: Insurers play rabbits and hedgehogs ( Memento from August 3, 2012 in the Internet Archive )
  8. ↑ sueddeutsche.de: BGH judgment against Deutscher Ring: reference for customers of life insurance
  9. ↑ Federal Court of Justice, judgments of May 9, 2001, Az. IV ZR 138/99 and IV ZR 121/00.
  10. ^ Higher Regional Court of Stuttgart , judgment of September 27, 2007, Az. 7 U 64/07.
  11. ^ Federal Court of Justice, judgments of October 12, 2005, IV ZR 162/03 and IV ZR 177/03.
  12. ↑ Reinecke, DB 2006, 555 ff.
  13. ↑ Federal Constitutional Court, decision of non-acceptance of February 15, 2006, Az. 1 BvR 1317/96.
  14. ↑ Federal Court of Justice, judgment of July 25, 2012, Az. IV ZR 201/10.
  15. ↑ Federal Court of Justice, judgment of June 26, 2013, Az. IV ZR 39/10.
  16. ↑ Federal Court of Justice, judgments of September 11, 2013, Az. IV ZR 17/13 and 114/13.