Risk Limitation Act
| Basic data | |
|---|---|
| Title: | Law to limit the risks associated with financial investments |
| Short title: | Risk Limitation Act |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Commercial law , capital market law , banking law |
| Issued on: | August 12, 2008 ( BGBl. I p. 1666 ) |
| Entry into force on: | predominantly August 19, 2008 |
| GESTA : | D065 |
| Weblink: | Legal text |
| Please note the note on the applicable legal version. | |
The law to limit the risks associated with financial investments ( Risk Limitation Act ) is a German federal law that regulates the drafting of loan and security agreements as well as the assignment of credit claims . Changes are also planned with regard to the reporting of significant investments in companies under the WpHG and in the area of registered shares under the AktG . The aim of these changes is to make possible takeover attempts by financial investors transparent to the companies concerned at an early stage.
Background: Legal policy discussion 2007/2008
Since 2007 there has been a legal political discussion in Germany about the sale of loans . Discussions were the bank's duty to inform the borrower before the sale, the obligation for banks to also offer loans (against a surcharge) without the possibility of a sale, and even a special right of termination for the customer in the event of a loan sale (which, in economic terms, would mean a ban on the sale of fixed-interest loans ).
In the course of this discussion, various banks had announced that they would offer loans in general or at an interest rate premium of 0.1 to 0.2%, in which they undertook not to sell the loan.
New regulations in the Risk Limitation Act
As a result of this discussion, the German Bundestag passed the “Law on Limiting Risks Associated with Financial Investments” (Risk Limitation Act) at the end of June 2008. Most of it came into force on August 19, 2008 without retroactive effects. Articles 6 to 11 contain regulations for better protection of borrowers when selling loans. These modify, in particular, the provisions of the Civil Code on loans and land charges. The law is intended to provide borrowers with greater transparency in loan sales and better protection against payment arrears. The new regulations envisaged by the legislator partially follow what is already practiced by the majority of credit institutions when assigning claims. The changes are as follows:
- Pre-contractual obligation to provide information on assignability: The new regulation according to Section 492 (1a) sentence 3 BGB obliges the lender in the case of real estate loan agreements within the meaning of Section 492 (1a) sentence 2 BGB (i.e. only for a consumer as the borrower) to notify the borrower when the contract is concluded with a clearly structured notice that the loan repayment claim may be assigned without their consent and that the contractual relationship may be transferred to a third party if this is not contractually excluded.
- Workforces should be better protected in the event of company takeovers: As long as this does not jeopardize any company or business secrets, there is a future obligation to inform the economic committee or the works council . The Works Constitution Act (BetrVG) is supplemented as follows in Section 106, Paragraph 2: In the cases of Paragraph 3 No. 9a, the required documents include, in particular, information about the potential purchaser and his intentions with regard to the company's future business activities the resulting impact on workers; the same applies if a bidding process is carried out prior to the takeover of the company. In future, this will also apply to companies in which there is no economic committee, thanks to a corresponding right of participation for the works council ( Section 109a BetrVG).
- Obligation to notify in the event of assignment: If a credit claim is assigned or there is a change in the person of the lender, the borrower must acc. in accordance with the revised Section 496 (2) BGB, unless the lender continues to act as a creditor in relation to the debtor based on an agreement with the purchaser of the loan claim (silent assignment).
- Obligation of the lender to make a follow-up offer or reference to non-renewal of the contract: The credit institute or the new claimant is acc. In accordance with the new Section 492a (1) BGB, no later than three months before the expiry of a fixed interest period or the due date of the claim, the borrower has to inform the borrower of his readiness for a follow-up offer or to indicate that the contract will not be extended. This gives the borrower time to adjust to the changes and, if necessary, to examine alternatives.
- Extended protection against termination for real estate loan agreements (i.e. only towards consumers, see above): According to the amended Section 498 (3) BGB, termination is only possible if the borrower makes at least two successive partial payments in whole or in part and with at least 2.5% of the nominal amount of the Loan is in default. This regulation corresponds to the previous one for installment loans . However, the high percentage limit leads to a massive restriction of the bank's right of termination (see criticism).
- No purchase of the security mortgage in good faith and without any objection : With the security agreement (also: security agreement or declaration of purpose ), it is agreed between the lender and the security provider (e.g. the property owner in the case of a security land charge) which claim or which loan is to be secured by which security. If the loan is sold, the borrower can hold this security agreement against the new creditor. A previously possible acquisition of the security land charge without any objection in good faith - due to lack of knowledge of the security agreement - according to § 1157 sentence 2 BGB is excluded by the new regulation according to § 1192 paragraph 1a BGB.
- Due date of the land charge only after prior notice: The capital of a land charge must acc. § 1193 Abs. 1 S. 1, 3 BGB can be terminated with a six month period before the foreclosure can be carried out from it. A contractual agreement that deviates from this is now excluded by Section 1193 (2) sentence 2 BGB if the land charge serves to secure a monetary claim. The same applies to the compulsory administration of a property.
- No-fault claim for damages in the event of unjustified foreclosure from an enforceable document: The property owner who, after the loan repayment claim has been transferred to a third party , is exposed to unjustified foreclosure from an enforceable document (according to § 794 Paragraph 1 No. 5 ZPO ), has now in accordance with. § 799a ZPO a no-fault claim for damages against the person who carries out the enforcement. Thus, according to the new regulation, it no longer matters whether the enforcement creditor is aware of the inadmissibility of the enforcement measures.
- Cessation of foreclosure without provision of security: The borrower or the owner can up to now with an enforcement action against an unjustified enforcement measure according to Defend § 767 ZPO. Until a judgment has been issued, the enforcement debtor can also apply for a temporary suspension of enforcement. The court can then order the cessation against or without security. Since the provision of such a security exceeds the financial capacity of the debtor in many cases, the court must now gem. Section 769 (1) sentence 2 ZPO order the suspension of enforcement without the provision of security if the debtor is unable to do so and his action against enforcement has sufficient prospect of success.
- Non-assignable corporate loans: Entrepreneurs now receive according to Section 354a (2) of the German Commercial Code ( HGB ) gives you the option of concluding loan agreements with your credit institutions and agreeing on a prohibition of assignment.
- General terms and conditions protection also for loan contracts: In purchase, service and work contracts, clauses that allow a change of contract partner (on the part of the user of the general terms and conditions) are ineffective. This does not apply if the new contractual partner is named or if the customer reserves the right to withdraw from the contract if the contractual partner changes. This regulation is now also extended to loan agreements by the newly drafted § 309 No. 10 BGB.
- In the case of reporting obligations under securities trading law, voting rights from shares held and options are to be added together in future. In the event of a breach of reporting obligations under securities trading law, shareholders can lose their voting rights for six months or more. In future, those entered in the share register must inform the investigating party on request whether they own the shares or for whom they hold the shares. If the information is refused, the right to vote does not apply. The articles of association can determine the conditions under which entries in one's own name for shares belonging to someone else are permitted.
- As soon as they have acquired 10 percent or more of a company, shareholders must in future disclose the objectives pursued with their participation and the origin of the funds.
criticism
In its statement, the Deutsche Bundesbank emphasized the importance of the newly created option of assigning credit claims in the interests of an efficient financial market. She has concerns about extending disclosure requirements to silent assignments .
The Bundesbank directed massive criticism of the introduction of a minimum arrears of 2.5% of the loan amount, which is necessary before a loan can be canceled. For a typical home loan with 5% interest and an initial repayment of 1%, this rule means that a borrower would not be able to make any payment for 5 months before the bank can cancel the loan.
Due to the amendment to § 354a HGB made by the Risk Limitation Act , whereby an exclusion of assignment agreed in the loan agreement is mandatory and according to § 399 BGB leads to the nullity of the assignment, the use of credit claims as collateral for refinancing purposes of the lender is in principle more difficult in the opinion of the Deutsche Bundesbank been.
In order for the Deutsche Bundesbank to continue to accept central bankable credit claims as collateral in its dealings with credit institutions by way of security assignment - even if a credit claim should be subject to such an exclusion of assignment - and to use them for refinancing purposes with the Deutsche Bundesbank or the Eurosystem, this notification must Bundesbank assignments in dealings with the Deutsche Bundesbank and other Eurosystem central banks are expressly excluded from this exclusion of assignment in the loan agreement.
See also
Individual evidence
- ↑ Art. 229 § 18 EGBGB. Retrieved January 14, 2019 .
- ↑ Text of the amended regulations with emphasis on the amendments and reasons from the legal materials
- ↑ Statement by the Bundesbank ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ a b Bundesbank on Risk Limitation Act and Refinancing of Institutes ( Memento of the original dated December 2, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
