Real security
Real security (or tangible security ) is in banking a credit security , in which one or more guarantor the lender , one or more real rights grant. In contrast, there is the personal security .
General
What both types of collateral have in common is 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 borrower - the so-called collateral case. In the case of collateral, the lender has the right to cover his credit claim by realizing the collateral. This right arises from the security agreement that the lender concludes with the security seller. Security seller is someone who provides a security buyer with property security from his own assets and thus subjects it to the direct control of the security buyer. This gives the collateral taker a real legal position which grants him the right to preferential satisfaction from the collateral outside and within the collateral provider's insolvency proceedings . Property securities are therefore insolvency privileges that give the creditor a right of segregation .
Types and legal issues
The BGB recognizes the retention of title ( § 449 Paragraph 1 BGB), the mortgage ( § 1113 ff. BGB) and pledging ( § 1204 ff. BGB). From the Kautelarpraxis to have security assignment (§ § 398 et seq. BGB), the transfer of ownership in general and the transfer of ownership of motor vehicles (§ § 929 , § 930 BGB) and the land charge ( § 1192 para. 1a BGB) result. The obligation to collateral obtained for the guarantor from the protection buyer concluded security agreement . The creation of a lien , the transfer of ownership of a thing or the transfer of a right as security for a loan is a disposition that leads to an immediate change in the law. As a result, the collateral taker becomes the new owner , immediate owner or holder of the item, while the collateral provider loses this legal status at the same time.
Accounting
The collateral is still accounted for by the collateral seller because the collateral is not transferred to the collateral taker's assets. Even with the transfer by way of security, the security buyer does not acquire full ownership, but only property in trust according to the security agreement , so that it is closer to the lien. According to Section 242, Paragraph 1 and Section 246, Paragraph 1 of the German Commercial Code ( HGB) , all assets must be accounted for by the security seller, whereby the legal owner's claim to surrender is economically meaningless and has to subordinate itself to the economic usability of the item. According to this, the thing assigned by way of security is not accounted for by the credit institution , but by the security seller because he is considered the beneficial owner under commercial law. The economic perspective has priority over questions of form when accounting. The IFRS / IAS also prioritize the economic approach in their central accounting principle of substance over form , according to which the assessment of a situation is primarily not based on its legal structure but on the economic impact (IAS 17). According to IAS 7.14, the protection seller must disclose information on assets given as collateral and the protection buyer on the collateral held.
Banking Regulations
In accordance with customary banking practice, credit institutions check the required collateral with commercial diligence for its intrinsic value before accepting it. In the case of real collateral, they must therefore also subject the intrinsic value of the collateral received to a collateral assessment as part of the credit check based on the lending documents , which results in a lending value .
According to the legal definition in Art. 4 Para. 1 No. 57 of the Capital Adequacy Ordinance (CRR), credit collateral is referred to as credit risk mitigation. According to Art. 4 (1) No. 58 CRR, real collateral is part of “collateral with security deposit”, in which the credit risk associated with bank loans is reduced by the fact that the institution has the right to “determine” in the event of default by the borrower or in the event of certain other credit events To realize assets or amounts, to obtain their transfer or provision or to withhold them, or to reduce the risk exposure amount to the difference between this and the amount of a claim against the institution or to replace it with this difference ”. Art. 192 ff. CRR contain further provisions on the requirements for credit collateral that can be recognized and their risk-reducing effect. According to Art. 194 No. 2 CRR, banks must take all measures that are necessary to ensure the effectiveness of the collateral and to address the associated risks. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 No. 4 CRR).
Individual evidence
- ↑ Julian Teves, Die Mobiliarsicherheiten in German and Romanian Law , 2004, p. 33
- ↑ Hans-Jürgen Lwowski, Das Recht der Kreditsicherung , 2000, p. 41
- ↑ Peter Bülow, Law of Credit Securities , 2012, p. 44
- ↑ Thorsten Boeckers / Gottfried Eitel / Marcel Weinberg, loan collateral , 1997, p 59