Savings
Savings deposits (also savings balances ) are bank balances with credit institutions that are used for unlimited financial investments and are not intended for payment transactions .
General
Savings deposits are one of three forms of bank balance, which include sight deposits and time deposits . All three types differ primarily in terms of their term or notice period , because sight deposits are due and available on a daily basis, the term or notice period for fixed-term deposits is at least one month. Savings deposits must have a term or notice period of at least three months. There may therefore also be temporary deposits with a term or notice period of six months or more, provided that they are expressly agreed as temporary deposits. Only sight deposits may be used in addition to financial investments for payment transaction purposes. With a normal interest structure , the sight deposits have the lowest interest rate , followed by time deposits; the highest rates of these three types are usually obtained on savings deposits.
history
The first reference to the issue of savings bank books can be found in a report by the Rendanten ( paymaster ) of the Stadtsparkasse Berlin founded on June 15, 1818 . It says: “Every interested party receives a so-called receipt book for the sums paid, which also contains the statute, receives a number and is signed by the Curatorium. When the receipt book is presented, the accounting department compares the same with the account in the main book. Income or expenses entered, then given to the cash journal. ”The following savings banks initially issued“ savings bank certificates ”on which the“ pension fund ”assured the saver that he would get his deposit back at the specified time, including the interest accrued up to then. They were issued in 1833 in the name of the "loaner", so they were considered a loan for which the municipal assets served as security for capital and interest (§ 2 Statutes of Sparkasse Nürnberg), savings balances were generally not allowed to exceed 300 guilders (§ 5 ders .). An assignment or pledging of the savings bank note was not permitted (§ 7 ders.), However, savings bank notes could be inherited. The legitimation effect was already similar to today's savings book (§ 9 ders.). The interest payment dates were fixed from the outset, so that every holder of savings bank notes had to report on these dates to withdraw the interest. The first savings book issued in Austria was deposit book no. 1 , which was issued on October 4, 1819 by the first Austrian savings bank . When the first Savings Banks Act (regulations pertaining to the establishment of the savings bank system) came into force in Berlin on December 12, 1838 , only “ savings books” were mentioned. At least in Prussia they had prevailed at that time. In other German states and countries, the “savings bank” or “deposit notes” dominated until the beginning of the 20th century. In 1884 there were already 6 million savings accounts in Germany, in 1910 there were 21.5 million (33% of the population had a savings account).
Current situation
In October 2014, private households had deposits with German banks worth EUR 527.680 billion with an agreed notice period of up to 3 months. Until then, the interest rate has steadily decreased from 5.0% p. a. in 1970 down to 0.001% p. a. Effective interest rate .
The number of savings account holders is also falling. In 2014, according to a survey by the polling institute TNS Infratest, 50.5 percent of Germans owned a savings account, 4.5 percentage points less than the year before. Nevertheless, it remains the most popular form of investment among Germans. The decline is primarily due to higher-interest overnight money offers from direct banks, but the first financial institutions are now also offering higher-interest online savings books.
Legal situation in Germany
Under civil law, savings deposits are considered loans ( Section 488 BGB ), so that the loan form, deadline and termination regulations apply, unless otherwise agreed.
The original aim of banking supervisory law to use savings deposits to create a standardized form of investment that is easily manageable for savers was reflected, among other things, in the fact that the term savings deposit was incorporated into sections 21 and 22 of the German Banking Act (KWG) a. F. was regulated and thus legally protected. The banking supervisory authority considered such extensive regulation of savings transactions no longer necessary and hardly compatible with the principle of contractual autonomy. As part of the fourth amendment to the KWG, the savings traffic regulations were therefore deregulated. Since July 1, 1993, the term savings deposits has been defined in Section 21 (4) of the Financial Institutions Accounting Ordinance (RechKredV).
In place of a comprehensive legal protection of terms and a contract regulation, a pure accounting regulation was taken. Since then, the credit institutions have been able to offer investment products under the name savings deposit . As such, however, they may only account for deposits within the meaning of Section 21 (4) RechKredV. Such an accounting rule is necessary because both the minimum reserve provisions in Section 16 of the Bundesbank Act and the banking supervisory liquidity principles are linked to the balance sheet item "savings deposits" and these provisions in particular provide for a different treatment of time deposits and savings deposits.
Requirements of savings deposits
Nevertheless, the legislature has considered it necessary to provide the concept of savings deposits with the help of a legal definition . According to section 1 (29) sentence 2 KWG, savings deposits are considered
- perpetual funds that
- are marked as savings deposits by making out a certificate , in particular a savings account,
- are not intended for payment transactions ,
- will not be accepted by corporations , cooperatives , economic associations , partnerships or companies with their registered office abroad with a comparable legal form , unless these companies serve charitable, charitable or church purposes or the funds accepted by these companies are securities in accordance with § 551 BGB, and
- have a notice period of at least three months;
- Deposits, the savings conditions of which give the customer the right to dispose of his deposits with a notice period of three months up to a certain amount, which may not exceed EUR 2000 per savings account and calendar month, without notice;
- Amounts of money that are paid on the basis of wealth formation laws.
These requirements must be met cumulatively. According to this provision, building society deposits do not belong to savings deposits .
Group of people
The group of depositors from whom savings deposits can be accepted by credit institutions is limited. In particular, these are natural persons or groups of persons who serve charitable, charitable or church purposes. Also, municipalities , social security institutions , unincorporated associations and civil law partnerships can continue to justify savings. In principle, legal entities or partnerships can no longer accept savings deposits unless they serve charitable, charitable or church purposes. According to the old KWG regulation (Section 21 (3) KWG old version), amounts of money from these groups of depositors could then be accepted as savings deposits if they could prove that the funds were used to invest or accumulate assets. According to Section 39 (5) RechKredV, savings deposits that were established before July 1, 1993 on the basis of this regulation could still be referred to as such after July 1, 1993.
Legal nature of the savings account
The savings book or savings bank book shows the money movements (deposits, withdrawals, interest credits, etc.) in a savings account. A savings account is kept for every savings deposit, which is probably the most common form of investment in Germany. Savings certificates issued by a savings bank are usually called the savings bank book , while banks usually issue the savings book.
The savings book is a debt certificate issued in the name of a specific creditor (the saver), which contains the repayment promise of a specific credit institution. In addition, the savings bank book fulfills all of the criteria required for its allocation to the securities . Specifically, it is both a qualified legitimacy paper and a limping owner paper that in view of its transferability to the registered securities is expected. As an exception, there is also the form of the bearer passbook, which belongs to the bearer papers .
Qualified legitimation paper
The savings book is a “qualified legitimation paper” within the meaning of Section 808, Paragraph 1, Clause 1 of the German Civil Code. Thereafter, the bank can pay out to the respective presenter of the savings book with the effect of discharging the debt, provided that the disposition is within the contractual agreement (the so-called "promised performance"; i.e. only disposals for amounts terminated and within the scope of the exception mentioned below). The savings book contains the name of the creditor, but the debtor bank may, within the scope of the promised performance, pay out to any holder with debt-discharging effect. It is also called a qualified identification paper because it is a document that the debtor only has to pay to the holder. Savings books indicate the name of the obligee, but are issued with the stipulation that the promised performance can be effected to each holder.
Credit institutions can grant the customer the right to dispose of a maximum amount of € 2,000 per calendar month without notice, provided the savings deposit has a notice period of 3 months. If the credit institutions allow a higher amount than the agreed amount to be disposed of in individual cases or if the savings deposit is based on a different notice period, interest on advance payments will be charged.
Limping bearer paper
The term limping bearer paper ( Section 808, Paragraph 1, Clause 2 of the German Civil Code) is misleading, because it concerns registered papers with a legitimation clause. Although every owner of the savings book is entitled to demand the promised service from the bank (bearer paper), the bank is not obliged to pay without checking the legitimacy of the presenter (restriction of the legitimacy effect).
Transferability
In the case of registered papers, only the person named is entitled to demand performance from the debtor. In the case of savings books, the named saver is therefore initially entitled to request payments from the bank. If a transfer is to take place from the named person to other creditors, savings (cash) books (more precisely: the savings deposits securitized in them) are transferred by assignment like all registered papers . Simply handing over the savings book is neither sufficient nor necessary for a transfer to be legally effective. Rather, the savings deposit evidenced in the deed must be transferred by assignment from the previous creditor (assignor) to a new creditor (assignee) in accordance with § 398 , § 413 BGB. The assignee is then entitled to the surrender of the document ( Section 412 , Section 985 , Section 952 Paragraph 1 Clause 2 BGB). The right to the savings book (right of ownership of the document) follows the law from the savings book (right of claim). Since the assignment follows the principles of the law of obligations, an acquisition in good faith is excluded because this is only provided for in property law. A material entitled person from a savings bank book is someone who can legitimize himself through a seamless chain of assignments that must be traced back to the issuer of the certificate.
Deposit of savings
The acceptance of savings deposits is banking within the meaning of Section 1 (1) Sentence 2 No. 1 KWG, so that a banking license issued by BaFin in accordance with Section 32 KWG is required. That is why it is predominantly credit institutions that are entitled to accept investments called “savings deposits”.
The case law took a position on the question of the value date for payments early on . By cash deposits of the customer against the bank debt securities - to the account already created with the deposit - not only with the credit or the value date. Payments into accounts must be credited with interest effect on the payment date, deviating agreements are not permitted. Since November 2009, Section 675t of the German Civil Code ( BGB ) has stipulated that the amount must be made available to the recipient immediately in the case of cash payments to payment accounts. The term “payment accounts” does not include savings accounts in accordance with Section 1 (17) of the Payment Services Supervision Act, so Section 675t BGB is not formally applicable to savings accounts, but is still adopted in practice.
If a third party pays into a third-party savings account without reservation, the holder of this savings account also becomes a creditor of this deposit. If a close relative opens a savings account in the name of a child without relinquishing it, it can usually be concluded from this behavior that the donor wishes to reserve the right to dispose of the savings until his / her death.
Interest credit
The credit of interest on savings accounts is usually done once a year, at the request of a saver or when closing the account. The interest is usually not immediately part of the savings credit and therefore does not earn interest either (see interest capitalization ). A constant or a variable interest rate on savings deposits is not subject to any judicial review of the terms and conditions. With savings deposits, it is usual to charge the so-called basic savings rate , a variable interest rate. The establishment of a unilateral interest rate change right of the credit institutions in their general terms and conditions with agreed variable interest rates on savings deposits is not fundamentally unreasonable for the saver. Rather, the unreasonableness can result from the design of the interest rate change clause , which is subject to content control in accordance with Section 308 No. 4 of the German Civil Code (BGB) if agreed in a form . As the Federal Court of Justice decided on a comparable clause on February 17, 2004, the unlimited authority of a credit institution to pay the saver the respective interest rate - posted on the notice board - does not have the required minimum degree of calculability of possible interest rate changes. The clause reveals neither the requirements nor the scope of the changes, enables the interest rate to be changed without taking into account the equivalence ratio of performance and consideration existing at the start of the contract and is therefore unreasonable for the saver, in any case with long-term contracts.
Disposal of savings
The omitted regulation of Section 21 (4) KWG a. F. stipulated that savings deposits could only be made upon presentation of the savings book. This regulation can now be found in most of the general savings conditions of the credit institutions, which are part of the general terms and conditions. According to this, it is necessary that the saver can generally only dispose of his savings upon presentation of the savings book and that the credit institution is not obliged to pay without presentation of the document.
Only the following exceptions are permitted:
- Standing orders in favor of another savings account of the saver with the same credit institution,
- Debits by the bank, for example for repayment installments, securities purchases, custody fees,
- Transfers to the saver himself if he is prevented from doing so due to illness or
- after losing the savings certificate.
In section 21 (4) sentence 2 RechKredV, loan termination provisions are modified in favor of the saver. According to this, credit institutions can agree in their savings conditions that the saver may dispose of part of his savings deposits without notice, up to a maximum of € 2000 per savings account; However, this only applies to savings deposits with a three-month notice period and is limited to one calendar month in each case. If the dispositions exceed this threshold amount of the promised benefit , the savings deposits must be canceled. In addition to the € 2,000 exemption, savers can use the interest credited from the previous year in the first two months of the calendar year January and February.
According to the judgment of the Frankfurt Higher Regional Court, the saver's right to information and the right to payment of the savings credit and the interest accrued do not expire simply because a savings account remains unaffected for decades.
termination
With the termination for the purpose of calling in the savings deposits, the saver expresses that he wants to claim back part or all of the existing savings balance and in the latter case he would like to terminate the savings contract. After the notice period has expired, the saver is entitled to immediate repayment of the then due savings credit due to the timely termination.
If, on the other hand, a savings deposit is paid back early before it becomes due (i.e. without observing the notice period or before the expiry of a possibly specially agreed blocking period ), a so-called debt amendment contract is required. However, only the account holder himself can conclude this with the bank. The saver has no legal right to early termination. However, if the credit institution complies with the saver's request for early termination, the saver usually has to pay a prepayment penalty , which may result in a loss of interest or a cost disadvantage. This can be done in the form of advance interest, an early repayment fee or parallel interest.
If the canceled amount is not available within four weeks of the due date, the savings deposit (including savings deposits with a notice period of more than three months) will be shown as savings deposits with a three-month notice period after this period has expired. However, there is no financial disadvantage for the saver from this process.
Loss of the passbook
In the event of loss or destruction of the savings certificate, the notification procedure was specifically intended for limping bearer papers according to § 1023 ZPO old version. Section 1023 of the old version of the ZPO became obsolete on September 1, 2009. The notification procedure for the invalidation of documents is now regulated in §§ 466 ff. FamFG. There is the possibility of a simplified posting procedure for savings (cash register) books. This procedure takes place out of court by making the loss public in the municipal or official gazette and giving the owner of the savings (kassen) book the opportunity to register his / her rights within three months. After the deadline has expired, the bank's board of directors will declare the savings (cash) book to be inoperative (for example in accordance with Section 16 (2) No. 6 of the NRW Savings Banks Ordinance). This declaration of nullity has the same effect as a declaration of nullity as part of an exclusionary judgment issued in a court announcement procedure ( Section 952 ZPO). This excludes other people with their possible rights to a savings (cash) book. With the annulment, destroyed, lost or lost savings bank books become worthless because the documented claim expires with the exclusion judgment.
species
Savings deposits are subject to the credit institutions' freedom of design and occur in particular in the following forms:
- saving account
- Capital-building savings contract
- Premium savings
- Savings plans
Savings plans are often run as loose-leaf savings books. The savings book is increasingly being replaced by so-called savings cards. Sparcards (spar - Karten) offer customers the advantage of receiving cash at ATMs outside of business hours. Depending on the financial institution, this can be done at their own machines or even worldwide. Most of the time, the interest on Sparcard accounts is higher than on traditional savings books. In return, withdrawals and changes to bookings are only possible at machines or online .
safety
Savings deposits are gilt-edged . As is the case with all bank balances , savings deposits with German banks are subject to at least the statutory deposit protection and often also the voluntary deposit protection of individual banking associations.
General
The saver is a creditor of the savings deposits and is therefore subject to the usual creditor risks of a lender , in particular the risk that his savings deposits and interest will be repaid in part or not at all because the debtor bank has become insolvent . This investor risk is relieved from bank customers by the Deposit Protection and Investor Compensation Act as well as the - optional - membership of credit institutions in security schemes, provided that their savings are within the maximum guaranteed limit. If the financial investments exceed this secured maximum limit in individual cases, the question is how to deal with the excess amounts. Spectacular cases have made it clear to what extent faulty clarification can lead to liability for advice and thus to claims for damages by the saver.
Judgments of the BGH
On July 14, 2009, the BGH had to decide on claims for damages by two investors who had invested savings bonds and fixed deposits of well over € 20,000 each with a bank that had gone bankrupt. In the opinion of the Federal Court of Justice, the bank must inform the investor of its risks in the event of the bank's bankruptcy and may not, under certain circumstances, recommend a deposit at all if the customer expressly declares that he wants a safe investment.
According to this judgment , a bank that conducts banking or financial services within the meaning of Section 1 KWG must inform its customers in the price notice that it belongs to a facility to secure the claims of depositors and investors (security facility). According to the BGH, if the investor expressly requests a secure investment, the reference in the general terms and conditions to the extent and form of the protection of the deposits is not sufficient. Rather, the bank must expressly explain the existing hedging instruments.
The investors sued for breach of the information and advisory obligations with regard to the scope and amount of the protection of their savings deposits. In July 2003 insolvency proceedings were opened against the bank's assets. The investors only received the statutory compensation amount of € 20,000 at that time under the Deposit Protection and Investor Compensation Act. A further compensation was not possible because the bank does not pay the deposit protection fund of the Bundesverband deutscher Banken e. V. was connected. The investors were not fully compensated in the insolvency proceedings either, so they sued the insolvency administrator for the remaining amount and demanded satisfaction from an insurance policy that the bank had taken out for financial losses.
In the judgment cited, the BGH affirmed that the defendant bank did not breach its duty to provide information in accordance with Section 23a (1) sentence 2 KWG to inform the customer in writing in an easily understandable form of the provisions applicable to security, including scope and amount, prior to commencing the business relationship to inform the backup. The requirement of easy comprehensibility of the information is also fulfilled if the information - as in the case - is contained in the general terms and conditions of the credit institution and the customer has been informed of this separately. However, the customer does not need to sign the information document. The customer has to prove that the bank has not complied with its information obligation. In the present case, however, the applicants did not succeed in providing evidence.
Legal security
According to Section 4 (2) No. 1 of the Deposit Protection and Investor Compensation Act (EAEG), deposits of up to € 100,000 are guaranteed (since January 1, 2011, until then € 50,000), which will be paid out in the event of compensation if a credit institution pursuant to Section 5 EAEG is unable to repay deposits. Deposits abroad are also insured up to € 100,000 or GBP 85,000 in accordance with the EU-wide deposit insurance scheme and national currency. Deposits within the meaning of this Act are credit balances with credit institutions that are to be repaid in the course of the business activities of an institution and on the basis of statutory or contractual provisions. This also includes claims that the institute has securitized by issuing a certificate, but not bearer and order bonds. This provision also includes savings deposits.
consequences
When a consulting contract is concluded, a bank may not recommend a deposit to a customer who has shown a particular interest in the nominal security of an investment if it only has the statutory minimum coverage according to the Deposit Protection and Investor Compensation Act. If the amount of the investments exceeds the scope of the hedging instruments, the bank must expressly point out a possible total loss of the excess amount and refuse to invest the unsecured part in itself.
Banks organized under private law that are not part of the deposit protection fund of the Bundesverband Deutscher Banken e. V. and accept customer deposits in excess of € 100,000 and invest in yourself can be at fault for advice. This negligence for advice can trigger a separate claim for damages on the part of the saver (§ § 249 ff. BGB). In addition, the institutions must inform their customers in writing and in an easily understandable manner about the provisions applicable to security, including the scope and amount of the security, before commencing the business relationship ( Section 23a KWG).
In order to be able to assess the investor risk in concrete terms, bank customers must inform themselves in detail about the affiliation of a credit institution to a deposit protection fund and check whether the scope of their financial investments is fully covered by the scope of the security schemes. With regard to the insolvency risk of securities deposited with banks, see securities account .
interest rate
The interest rate on the savings deposit depends on the time and year as well as on the type of investment and institution and is based on the current key interest rate of the ECB . Under certain circumstances, e.g. For example, given the extremely low key interest rate of 0.00% currently in force in the euro area , one must also expect effective negative interest rates on the deposit, i.e. the interest rate will be well below the current inflation rate - currently 2.0% in Germany. so that one currently has to reckon with creeping losses of savings (see financial repression ). The hyperinflation of 1923 and the currency reform of 1948 , on the other hand, were not barely noticeable "creeping" processes, but rather "financial catastrophes" that were connected with the two lost world wars and in which practically all savings were lost in one fell swoop.
International savings
Austria
According to Section 31 (1) BWG, savings deposits are money deposits with banks that are not used for payment transactions but for investments and as such may only be accepted against the handing over of special documents (savings certificates). According to the case law, a savings deposit contract is neither a loan - as in Germany - nor an irregular custody contract , but rather a sui generis contract . On the basis of this contract, the customer hands over a savings deposit to the bank, while the latter gives him a savings certificate in which the amount paid is mentioned. The issuance of the savings certificate is required for the establishment of a savings deposit. The saver acquires a mandatory repayment claim against the issuing bank. This right can be assigned and pledged unless otherwise agreed. According to Section 32 (2) BWG, payments can only be made upon presentation of the savings certificate, which gives the savings book a securities law character. Until November 2000, credit institutions in Austria were allowed to issue anonymous savings books (bearer savings books ) in which the creditor was not named. Another restriction took place in July 2002 when the passing on of anonymous savings accounts was also prohibited. Since then, only name and denomination passbooks may be issued, while the anonymous passbooks that have not been passed on remain in existence until they are dissolved.
Switzerland
Savings books are called savings books or bank books . In the case of registered savings books, the name gives a clearer reference to the person entitled than in possession of the document, even if they contain the usual clause that the debtor may consider the owner to be entitled to dispose. This means that the name given in the name savings book is more likely to be viewed as a creditor than the respective owner, even if the credit institution with the owner clause may view the respective owner as legitimate.
France
In France, in addition to the normal “ compte d'épargne bancaire ” savings book, there are a number of (partially) tax-privileged forms of savings:
- Livret A / Livret bleu
- Livret de development durable
- Compte épargne logement
The Livret A is France's most popular form of savings. 37 million French people have this savings account, the history of which goes back to 1818. On May 22, 1818, this form of savings account was created on the initiative of Benjamin Delessert to the government of Louis XVIII. to help shoulder the financial consequences of the Napoleonic Wars . The interest rate on Livret A is set by the state. The interest income is tax-free, which significantly increases its attractiveness. Until 2008, only the savings banks ( Groupe Caisse d'Epargne ), the French Postbank La Banque postale and the cooperative Crédit Mutuel (under the name Livret bleu ) were allowed to offer Livrets A. The savings had to be passed on to the Caisse des Dépôts , which used them for social housing . Under pressure from the European Commission , other banks have been allowed to offer this product since 2008.
Web links
Individual evidence
- ^ Articles of Association of Sparkasse Nürnberg from September 7, 1821
- ^ Statutes of the Sparkasse Halle from June 18, 1833
- ↑ Interest statistics. (PDF) Deutsche Bundesbank , archived from the original on December 10, 2014 ; accessed on December 21, 2019 .
- ↑ Survey results from test.de
- ↑ Gerhard Lippe / Jörn Esemann / Thomas Tänzer, Knowledge for Bankers : The Comprehensive and Practice-Oriented Compendium for Education and Training , 2001, p. 661.
- ↑ Federal Court of Justice (BGH), judgment of March 30, 1978, Az. VII ZR 331/75; NJW 1979, 1461.
- ^ BGH, judgment of June 17, 1997 , Az. XI ZR 239/96, full text; NJW 1997, 3168.
- ^ BGH judgment of April 25, 2005 , Az. II ZR 103/03, full text; NJW 2005, 2222.
- ^ BGH judgment of January 18, 2005 , Az. X ZR 264/02, full text; NJW 2005, 980.
- ^ BGH judgment of January 17, 2004 , Az. XI ZR 140/03, full text; BGHZ 158, 149, 152 f.
- ↑ ibid. BGHZ 158, 149, 156
- ↑ ibid. BGHZ 158, 149, 153 ff.
- ↑ Higher Regional Court Frankfurt am Main, judgment of February 16, 2011, file number 19 U 180/10
- ↑ the municipality in which the issuing credit institution has its registered office
- ^ BGH judgment of July 14, 2009 , Az.XI ZR 152/08 and XI ZR 153/08, full text
- ↑ Deposit insurance in Europe. ZINSPILOT, accessed on September 18, 2018 .
- ↑ since June 25, 2009 increased to € 50,000 in accordance with Section 4 (2) No. 1 EAEG; from October 2010: € 100,000
- ↑ a b OGH 7 Ob 128 / 04f; SZ 43/121.
- ↑ BGE 84 II 505, p. 513.
- ↑ France revolutionizes the savings book . In: Frankfurter Allgemeine Zeitung , June 13, 2008, p. 23.
