There is now a legal definition for the term “borrowing rate” in (5) BGB . This provision differentiates between “tied”, ie fixed interest rates, and “variable”, ie variable annual interest rates, which are used as a basis for a loan. A fixed percentage for the entire term of the loan agreement is therefore a fixed rate. A "variable" interest rate is given if no fixed interest rate has been agreed for the entire term of the contract, but fixed interest rates are only provided for shorter periods of time. The complicated legal regulation turns the variable interest rate into a fixed interest rate for the agreed term. The interest rate adjustment in the case of variable interest rates is therefore a content-related contract design option in which the determination of the service by one of the contracting parties is continuously possible.
Types of Debit Interest
The colloquial term “debit interest” is used as a collective term for a large number of types of credit. The types of interest influencing the effective interest rate are called price-determining factors ( PAngV ); this includes the borrowing interest in the narrower sense and the loan interest.(3 )
Debit interest in the narrower sense
Originally, the term was reduced to loan interest that had to be paid for debit balances on current accounts . They are calculated when a current account shows a debit balance due to disposals. This borrowing rate is mostly variable and is adjusted to general market fluctuations.
Overdraft interest will only be charged - in addition to the debit interest - if the current account is overdrawn . An overdraft can either be caused by debit balances without a line of credit ( credit facility , overdraft is or) by in excess of that credit.
Colloquially, the term was then expanded to include all loan interest that accrues with the various types of loan. Interest rates on granted loans are for precise terminology loan interest, the amount - is firmly agreed either for a fixed term (fixed interest) or depending on market conditions can be variable - depending on the agreement.
Like all loan interest, borrowing interest is only calculated from the actual loan amount. The calculation of interest begins on the value date on which the loan is granted and ends on the day on which the loan is repaid . Cycled finds current accounts interest charges to the respective accounts held, mostly in the form of the calendar quarter.
Other borrowing costs
If credit costs are not dependent on the credit utilization and / or the loan term, it is not a question of loan interest, but of loan commission . These are called commitment fee or commitment fee and will be charged regardless of the loan rate and load. As a rule, processing fees for processing the loan application may no longer be charged.
Interest rate change clauses
Interest rate clauses are price adjustment clauses that allow banks to subsequently change the borrowing rate set when the contract was concluded. These are independent price agreements that are intended to change an agreed interest rate. The banks hereby pursue the legally recognized goal of passing on changes in interest rates on the capital and money markets to their customers without the need to amend the contract. These clauses have already been the subject of the highest court rulings of the BGH several times . Such interest rate change clauses occur both in loan agreements and in investments . For an interest rate adjustment clause in the lending business that is sufficient according to German Civil Code and (1) Clause 5 No. 5 of the German Civil Code, the necessary calculation parameters must be specified. The base interest rate according to BGB, EURIBOR , LIBOR or EONIA are suitable as reference interest rates . If a bank unilaterally reserves the right to change the interest rate in a form-based loan agreement, such a clause is generally to be interpreted in such a way that it only enables an adjustment (increase or decrease) of the contractual interest rate to changes in the bank's refinancing conditions due to the capital market in accordance with BGB. Such a clause withstands judicial content control.
The "appreciable interest" of the banks and savings banks to adjust the debit interest in times of the volatile capital market did nothing to change this. They can be expected to select one or a combination of them from the reference values of the capital market and to make them recognizable for the customer and expressly the yardstick for future interest rate changes.
Refinancing-related interest rate clauses
The case law recognizes that, in particular, the interest rate must be adapted to the changing and, when the contract is signed, future refinancing options that are usually not manageable. The BGH has so far interpreted bank loans with unrestricted interest rate clauses so that they only allow the lending banks to change the interest rate in accordance with the capital market-related changes in their refinancing conditions . A legitimate interest of the credit institutions in adapting their interest rates to the changing circumstances of the money and capital market not only for new contracts but also for existing contracts has been recognized several times by the Federal Court of Justice for the credit business.
Credit-oriented interest rate clauses
Credit-oriented interest rate clauses link the amount of the interest rate to be paid by the borrower to the borrower's probability of default resulting from the current rating . This alone can influence his own creditworthiness and thus this type of interest rate change. A change in interest rates is therefore not triggered by a change in market interest rates, but solely by any changes in the rating of the borrower. In order to take this into account, an agreement is usually made in the loan agreement, according to which the previously determined credit margins should also change depending on the rating changes that occur ( English "margin grids" ). This is intended to ensure that the credit margins should automatically increase with the increase in the default risk (i.e. with a deterioration in rating) and vice versa, without the need for new contractual agreements.
This passing on of the risk of a change in creditworthiness to the borrower is recognized, as the claims for additional collateral show. The subsequent collateralization is also linked to a deterioration in creditworthiness, as can occur due to a significant deterioration in the financial situation. This type of interest rate change clause is also recognized by case law. The change to a different rating class associated with a change in an individual default risk (“ rating migration ”) is an objective reason for a change in interest rates.
- Munich Commentary / Gottwald, BGB, 5th edition, § 315 Rn. 35
- Wolfram Oletz, creditworthiness- oriented interest rate change clauses according to Basel II , 2006, p. 125
- BGH, judgment of February 17, 2004, Az.XI ZR 140/03, full text = WM 2004, 825
- BGH, judgment of March 6, 1986, Az. III ZR 195/84, full text = BGHZ 97, 212
- BGHZ 97, 212, 216
- BGH, judgment of April 6, 2000, Az. IX ZR 2/98, full text = WM 2000, 1141, 1142 f.
- BGH, WM 2000, 1141, 1142
- General Terms and Conditions for Banks No. 13 para. 2 / AGB-Sparkassen no. 22 para. 1
- Wolfram Oletz, Creditworthiness- Oriented Interest Rate Change Clauses according to Basel II , 2006, p. 185
- BGH, judgment of October 12, 1993, Az. XI ZR 11/93, full text = WM 1993, 2003, 2004
- Peter Derleder, Transparency and Equivalence in the case of contractual interest rate adjustments , WM 2001, 2029, 2032