Security transfer of motor vehicles
The assignment of motor vehicles by way of security is in the credit system a security assignment that serves as security for the financing of motor vehicles . In addition to leasing, it is one of the two types of vehicle financing.
Motor vehicles are among the most expensive consumer goods and therefore often require financing when they are purchased. When on 22 February 1926, Ford Credit Company Ltd (now Ford Bank ) as the first automotive bank began, she sat down the goal of broad sections of the population to purchase to allow an automobile. At that time, motor vehicles were still unaffordable for most consumers , and traditional credit institutions were initially not ready to finance them. With the establishment of the manufacturer-bound automotive banks, there was a separation between goods production and sales financing for the first time .
With the widespread use of the automobile by higher income other sections of the population of the intensified after 1950 as part of the economic miracle and the financing needs . The households began the leverage to procure at banks outside the automotive banks. The transfer of ownership of the financed vehicles served as security for the loan. The peculiarity of this transfer by way of security was that, in the case of motor vehicles, the vehicle registration document was inseparably linked to a document that was to play an essential role in connection with the transfer by way of security.
Registration certificate part II
Here, specific provisions must be observed that are related to the registration certificate Part II - the earlier vehicle registration document. The legal relationships to the earlier Kfz-Brief were regulated in §§ 24 ff. StVZO , which were repealed with the introduction of the registration certificate in January 2005. However, these provisions regulated more the public law relationships and not the civil law property issues. This also applies to the regulation on the approval of vehicles for road traffic (VZF), which among other things regulates the legal relationships of the registration certificate.
Therefore, there are still significant gaps in terms of civil law ownership of the motor vehicle. The BGH rulings therefore had to ensure that these loopholes were closed and that the earlier Kfz-Brief was classified under civil law in a large number of judgments. The following case law of the BGH on the earlier Kfz-Brief is largely applicable analogously to the registration certificate part II, because the legal character of this document has not changed.
Legal character of the document
The vehicle registration certificate is a forgery-proof official document to clarify the right to dispose of a vehicle and the fulfillment of the technical operating requirements . The right of disposal here only relates to public law responsibility for a vehicle. The vehicle registration certificate is neither security nor traditional paper and also not a document of evidence, but only a "limping evidence". The registration certificate is just an auxiliary document. Therefore, the entry in the vehicle registration certificate is no proof of ownership of the vehicle. However, the possession of the vehicle with a registration certificate gives the legal certificate of control over a (used) vehicle. The entry in the registration certificate is only an indication that must be taken into account when assessing the overall circumstances. The person who has the vehicle registration certificate and is registered there as the owner must therefore provide evidence of their ownership to the owner of the motor vehicle, in whose favor the presumption of BGB applies.
As early as 1953, the Federal Court of Justice (BGH) ruled that the vehicle letter should protect the owner or other person entitled to property in the vehicle. In addition, according to the public opinion, it is to be assumed that the person who does not have the registration certificate does not own the vehicle. The registration certificate does not provide any information about the ownership structure of the vehicle because it is not the owner but the keeper of the vehicle that is registered. However, conditional owners or security takers tend to withhold the registration certificate or have it handed over to them, so that the possession of the registration certificate does not mean legal confirmation of ownership of the vehicle, but actually indicates that the owner of the registration certificate is also the owner of the vehicle. One of the minimum requirements for the purchase of a motor vehicle in good faith is that the buyer has the registration certificate presented in order to be able to check the seller's authorization.
Ownership of the registration certificate
Ownership of the registration certificate belongs to the vehicle owner according toParagraph 2 BGB, the vehicle and the registration certificate are inseparably linked. It is therefore not possible to purchase a vehicle in good faith without a vehicle registration certificate ( (2) BGB). Rather, it is regularly one of the minimum requirements for buying a vehicle in good faith that the buyer has the registration certificate presented in order to be able to check the seller's authorization. The fact that the seller is unable to produce the registration certificate must therefore arouse suspicion in the buyer and give rise to further inquiries.
Ownership of the motor vehicle
The right to dispose of a vehicle is not necessarily associated with ownership, because any owner can apply for approval without having to be the legal owner. Right of disposal here refers only to public law responsibility for a vehicle. In C.4c of the registration certificate it is expressly pointed out that "the holder of the registration certificate is not identified as the owner of the vehicle". The legal owner is only entitled to receive the registration certificate and to have his name entered therein. Rather, the owner of a motor vehicle is usually the person to whom the vehicle was transferred.
Therefore, only the owner of a motor vehicle who has agreed with the previous owner on the transfer of ownership and to whom the motor vehicle has also been handed over becomes civil law. In this context, the registration certificate has no direct function in the sale process; handing over the registration certificate therefore does not replace the actual handover of the vehicle. Conversely, it is also possible to transfer ownership of the motor vehicle without handing over the registration certificate, because it is not a traditional paper. However, according to the cited BGH case law and the legal situation, this does not enable the vehicle to be acquired in good faith.
According to the established case law, which the BGH has developed in a series of decisions, the possession of the registration certificate alone does not justify the legal certificate required for the purchase in good faith according to § 932 BGB orHGB when buying used vehicles . If the buyer fails to check the registration certificate, the accusation of grossly negligent ignorance is justified according to a firm opinion in case law and literature. According to established case law, when buying a used car there is always cause for further investigations ("suspicious situation") if the seller and the owner listed in the papers are not identical.
Registration certificate and transfer by way of security
An essential part of the Supreme Court case law dealing with rights issues of security of vehicles and the fate of the registration certificate II. The guarantor confirmed surety that he may dispose as owner over the to übereignende motor vehicle and is also the Bank undertakes in surety, the registration certificate II to be handed over in the original. A financing bank acts with gross negligence if it does not have the registration certificate handed over when the vehicle is transferred by way of security. In addition, the financing bank is acting in bad faith if it is not convinced, based on the entry in the registration certificate, that the security provider is authorized to dispose of it. As with any transfer of ownership by way of security, the credit institution taking the security must use suitable documents to clarify the ownership structure in order to be able to become the owner of the security item at all; the purchase contract must be submitted regularly. The good faith of a bank is generally excluded if a person other than the security provider is noted in the registration certificate or if the registration certificate does not show a holder entry. In the case of imported vehicles, special inspection obligations are imposed on the banks as part of the transfer of ownership. This established case law is based on the consideration that with used motor vehicles every participant in legal traffic, even if he does not have precise knowledge of the legal requirements and consequences of a transfer by way of security, must know that motor vehicles often serve as security for a loan granted when they are purchased .
Determination of the value of the transfer by way of security
In the case of new vehicle financing, the purchase price contained in the purchase contract is used in the collateral assessment as the basis for determining the lending value . This and the definition of the lending limit are treated differently in the individual groups of credit institutions ( savings banks , Raiffeisen banks , private banks ), so that generally valid statements cannot be made. It can be assumed that the mortgage lending limits for common motor vehicles do not exceed a maximum of 50% of the purchase price. In the case of used cars, the Schwacke list (or Eurotax) is used as a measure of value, the current values of which can also be credited with a maximum of 50%. The credit period adapts to the commercial depreciation period of the vehicles, i.e. generally does not exceed a period of five years.
For lending come as collateral objects all types of motor vehicles in question, in particular passenger cars , trucks , and special vehicles such as agricultural vehicles under the agricultural credit ( tractors , combine harvesters ). Entire vehicle fleets can also be transferred as a whole ( property financing ). In this case, the security contract requires a flawless transfer of ownership or marking and transfer of ownership in order to meet the principle of specificity . The lending documents to be submitted on the basis of the loan application include, in particular, the registration certificate, the purchase contract and proof of partial comprehensive insurance . In addition, the general loan documents are required. With regard to the intended use , car finance for private households is consumer loans , while for business purposes it is investment loans .
Recognition under banking supervisory law
Most legal systems do not know the transfer of ownership - and thus also the transfer by way of security of motor vehicles - it is a legal institution that is not expressly provided for in German property law , but is derived from existing regulations and is therefore permissible. It is recognized by the established case law of the Federal Court of Justice . She is also the room in English law Common Law known and there is English security transfer of title to movable goods .
Collateral in force since January 2014 banking supervisory law as a credit risk mitigation techniques . If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital at banks compared to unsecured loans . As a result, secured loans can be granted up to the lending limit with a more favorable interest rate .
The Capital Adequacy Ordinance mentions some types of loan collateral ( guarantee , assignment , pledging , mortgages ), but not assignment as security. However, it cannot be concluded from this that transfers by way of security are generally out of the question as a credit risk mitigation technique. The requirement for legal validity (Art. 194 (1), Art. 210 a CRR), which is often used in the Capital Adequacy Ordinance for loan collateral, also includes the transfer of ownership, which can be effectively agreed under German law. Like pledging, which is economically close to it, it belongs to the credit risk reduction techniques “with security deposit ” ( real securities ; Art. 4 Para. 1 No. 58 CRR). Art. 194 para. 1 CRR establishes principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally (English valid ) and enforceable (English enforceable must be) sufficiently liquid , over time a stable value and a credit event promptly utilizable be have to. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). A legal risk is in doubt by legal opinion ruled out.
The assignment of motor vehicles by way of security belongs to the category of property security. For this, particularly strict requirements are placed on the loan documents and collateral evaluation. For this reason, the transfer of ownership of motor vehicles by way of security may only be taken into account in the IRBA approaches in order to reduce credit risk, whereas it is not permitted in the standardized approach . According to Art. 199 CRR and 210 CRR, the following requirements must be met in the IRBA approach:
- There are liquid markets with publicly available market prices for the rapid realization of the property collateral .
- The surety must be an accurate description of the property, safety, the right to loan documents for the purpose of safety evaluation, and enable timely collection. In addition, the need guarantor the right of inspection of safety can give.
- at least annual value monitoring is required; if the markets are exposed to strong price fluctuations, the monitoring frequency must be increased;
- Real security must have priority over other creditor claims and
- the real security is covered by an appropriate damage insurance .
According to Article 199 (8) CRR, the European Banking Authority (EBA) has to publish a list of the types of property collateral for which institutions using the IRB approach can assume that the conditions are met. These conditions include the existence of liquid markets for the rapid and economic realization of the collateral (Art. 199 Paragraph 6 lit a CRR) and the existence of generally recognized, publicly available market prices (Art. 199 Paragraph 6 lit b CRR). According to the EBA, there are currently no physical securities for which the fulfillment of these conditions can automatically be assumed; instead, credit institutions must individually meet the conditions set out in the CRR.
If the assignments of vehicles by way of security do not meet these banking supervisory requirements, they are classified as unsecured loans.
Under German commercial law ( para. 1 and para. 1 HGB ) are accounted for all assets, with the claim for a legal owner is economically meaningless and against the economic usability withdraw the matter has ( economic approach ). According to this, the motor vehicle assigned by way of security is not accounted for by the credit institution, but by the borrower because it is considered the beneficial owner under commercial law. The economic perspective has priority over questions of form when accounting. The bank balances the claim secured by the collateral . The IFRS / IAS also prioritize the economic approach in its central accounting principle, that, in determining a facts not primarily necessary to look to its legal form, but on the economic impact is ( English substance over form , IAS 17).
In tax law, too, the assets assigned by way of security according to AO is not attributed to the credit institution as the legal owner, but rather to the user, since, in contrast to the owner, he exercises actual control over the economic asset in such a way that he generally leaves the owner (credit institution) free of the effects on the asset for the normal useful life can economically exclude (beneficial owner). In practice, it is precisely the aim of the transfer of ownership that the pledger and user can continue to use the thing for his business and thus make a profit in order to repay the loan. The tax law takes into account the actual beneficial ownership and gives it priority over the abstract, purely legal ownership situation.(2) no. 1
In France , on the basis of the law of December 29, 1934 ( French loi relatif à la vente de crédit des véhicules automobiles ) - replaced by the decree ( French décret-loi ) of September 30, 1953 - a registered lien on motor vehicles is possible, which at the responsible prefecture is to be entered. This disclosure replaces the missing transfer of ownership, which is the dominant system of the French property liens ( French mortgages does not undermine). French law has introduced the registered pledge the credit department of motor vehicles, because - unlike the German law - neither fully effective in the bankruptcy of the buyer retention of title nor a collateral assignment by constructive possession knows. A French lorry that served as collateral for a loan came to Germany and was seized for other debts of its French owner, which would have invalidated the French lien. The BGH ruled that the legally effective lien in France remained in effect when the vehicle was brought to Germany.
In Italy , the car mortgage is possible ( Italian ipoteca automobilistica ), which becomes effective through entry in a public register ( Italian pubblico registro automobilistico ). According to Art. 2810, Paragraph 4 of the Civil Code , it can be ordered on vehicles, ships and aircraft . The car mortgage became known in Germany in March 1991 through a ruling by the Federal Court of Justice when the latter had to rule on the illegal sale in Germany of a Ferrari with a car mortgage in Italy . In the judgment, the BGH upheld the Italian creditors' claim to surrender . This was also due to the fact that the vehicle papers - from which the car mortgage would have resulted - were not handed over, so that an acquisition in good faith had to fail.
It can turn out to be a nuisance if objects (especially vehicles) assigned by way of security in Germany are seized abroad, because the security is usually lost for the German security taker ( ) EGBGB ). According to this, the security interests are to be transferred to a comparable domestic property law type based on the transposition theory. Since this transfer by way of security is unknown in most countries, it must be expected that it will be legally invalid abroad.(1
The assignment of motor vehicles by way of security is economically the most important form of security assignment in Germany and forms the core business of the automotive banks today . In 2011, the turnover of the automotive industry was around 351 billion euros, around 11% more than in the previous year. The automotive banks accounted for a share of the financing (including leasing) of EUR 89.4 billion, which corresponds to a share of 25% of sales. The manufacturer-affiliated car banks had a market share of 67% in car financing, which makes them the market leader . The proportion of new vehicles financed was around 42% of all new registrations. The Wirtschaftswoche According to 79% of all new cars are financed or leased, when added to the other banks. Adding all vehicles - new or used - results in a financing share of 56% of all vehicles in Germany.
- BGH NJW 1978, 1854
- BGH NJW 1978, 1854
- BGH NJW 1976, 239
- BGH NJW 2004, 217
- BGH NJW 1953, 1347
- BGH WM 1967, 448 = openJur 2011, 117496
- BGH NJW 1977, 1240
- BGH NJW 1975, 735
- BGH NJW 1991, 1415
- BGH NJW 1960, 397
- BGH NJW 1964, 1413
- BGH NJW 1994, 2022
- BGH WM 1975, 362; "Used car dealer case"
- BGH WM 1987, 1282
- BGH WM 1970, 658
- BGH NJW 1975, 735
- BGH WM 1996, 172
- BGH WM 1994, 1296
- BGH WM 1996, 1384
- In the Capital Adequacy Ordinance called "Real Estate Securities".
- Thorsten Gendrisch / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 186
- European Banking Authority of July 2, 2014, EBA publishes lists for the calculation of capital requirements for credit risk
- cf. on this: Josef Féblot / Jean Mezger, retention of title and rescission clause for deliveries to France , in: Journal for foreign and international private law, 1955, p. 662
- BGH, judgment of March 20, 1963, Az .: VIII ZR 130/61, BGHZ 39, 173
- BGH, judgment of March 11, 1991, NJW 1991, 1415
- Ulrich Hübner, International Private Law Recognition and Substitution Problems with Non-Possessional Furniture Security , in: ZIP 1980, 825, 829
- VDA Association of the Automotive Industry, Annual Report 2012 , p. 89
- Wirtschaftswoche on May 23, 2014, Is it worth buying a car on credit?