Consumer loan agreement
The origin of this type of contract and its legal regulation go back to the EU Consumer Credit Directive .
Origin, legal basis
If the corresponding regulations were originally in the Consumer Credit Act , they were integrated into the Civil Code ( BGB) by the Law of Obligations Modernization Act . As of June 11, 2010, other regulations will apply after the law on the implementation of the Consumer Credit Directive, the civil law part of the Payment Services Directive and the reorganization of the provisions on the right of withdrawal and return of July 29, 2009 came into force.
The legal terms consumer and entrepreneur are defined for Germany in and BGB.
In principle, the general provisions on the loan contract (BGB) apply to the consumer loan contract . The norms of BGB also apply to the consumer loan (with exceptions) with the aim of strengthening the protection of the consumer.
To protect the consumer, the consumer loan contract must generally be in writing and have a minimum content. Since the written form is required, the signature of the parties is required ( BGB). However, the lender's declaration does not require a written form if it has been created with the help of an automatic device ( BGB). However, the consumer's signature is required.
The statutory minimum content ( effective annual interest rate ) should enable the consumer to better compare the different types of credit and their costs. In the case of interest rates that are dependent on creditworthiness , PAngV (“Advertising for Loan Agreements”) stipulates that the bank must indicate in its advertising that the interest rate is dependent on creditworthiness. The bank may only advertise with interest rates that are not undercut by 2/3 of the contracts actually concluded.BGB) (for example, information on the net loan amount and the
Further rules in favor of the consumer:
- Mandatory formal requirements (easing of evidence)
- Mandatory information in the contract (better risk assessment, simplification of evidence)
- Order of legal consequences if the above points are not observed at the expense of the entrepreneur
- Granting of a right of withdrawal in accordance with BGB as well as in the case of an affiliated business
- Invalidate the waiver of objections against a new creditor in assignment of the loan receivable
- Prohibition of entering into abstract liabilities by the consumer to increase guilt (so-called ban on bills of exchange and checks ; liability for damages in the event of infringement)
- Treatment of default interest (protection against over-indebtedness)
- Limitation of the lender's termination options in the event of late payment
Failure to comply with the written form and minimum content lead to the nullity of the loan agreement ((1) BGB). The consumer loan contract becomes valid as long as the borrower receives or uses the loan ( BGB).
In any case, the borrower has a right of withdrawal ( Residential Property Credit Directive .BGB). The withdrawal period is two weeks ( BGB). However, this deadline can become ineffective due to incorrect cancellation policy. Such incorrect determinations have been documented in several instances. The consumer center Hamburg assumes that 9 out of 10 consumer loan contracts contain incorrect cancellation instructions. However, on February 18, 2016, the legislature decided to allow this extension of the right of withdrawal for contracts from 2002 to 2010 to expire, thereby implementing the European
Mitigating the consequences of the COVID-19 pandemic
In the case of consumer loan contracts that were concluded before March 15, 2020, the lender's claims for repayment, interest payments or repayment payments due between April 1, 2020 and June 30, 2020, according to Art. 5 of the Law to Mitigate the Consequences of the COVID-19 pandemic in civil, insolvency and criminal procedure law with the due date being deferred for a period of three months if the consumer has lost income due to the extraordinary circumstances caused by the COVID-19 pandemic in Germany lead that the performance of the owed service is unreasonable for him. Terminations by the lender due to default in payment , due to a significant deterioration in the consumer's financial situation or the intrinsic value of a security provided for the loan are excluded until the deferral has expired (Art. 240 § 3 EGBGB new version).
A special case of the consumer loan contract is the real estate loan contract for mortgage-backed loans.
In Austria, the Consumer Credit Directive was implemented by the Consumer Credit Act.
- Official Journal of the European Communities . L, No. 133, 2008, p. 66; Art. 15 deals with "linked credit agreements" . In:
- Errors in revocation recognized by the court
- Investigation of the consumer advice center Hamburg
- , Retrieved July 7, 2017
- Law on the implementation of the residential real estate credit directive and on the amendment of commercial law regulations
- Draft of a law to mitigate the consequences of the COVID-19 pandemic in civil, insolvency and criminal procedure law . BT-Drs. 19/18110 of March 24, 2020, p. 4.
- Corona aid package and other options: When money is running out, North Rhine-Westphalia Consumer Center, March 30, 2020.
- Entire legal provision for the Consumer Credit Act
- Bülow, Artz: Consumer Credit Law. Comment . 7th edition. CH Beck, Munich 2011, ISBN 978-3-406-60613-7 .