Personal loan
A personal loan (also: personal loan ) is a loan in which natural persons act as lenders . The word personal loan is also used as a synonym for consumer credit by credit institutions in advertising .
General
The word personal loan is intended to make it clear that private individuals act as lenders and non- commercial lenders such as credit institutions in their lending business . Even commercially active non-banks (in the case of supplier credits , parent companies in the case of shareholder loans to their subsidiaries ) are not covered by the personal loan. Personal loans usually lack the commercial aspect. As in Section 1 (2) of the German Commercial Code ( HGB), any activity that is long-term and emerges on the market is commercial , whereby the intention to make a profit is not important. If a private individual grants several personal loans, even interest-free, this can be sufficient for tax recognition as a business. A ruling by the Federal Fiscal Court (BFH) from April 2012 provides information on this , according to which any sustainable activity for generating income is considered to be commercial within the meaning of sales tax in accordance with Section 2 Paragraph 1 Clause 3 UStG . The number and scope of the transactions are therefore not solely decisive in themselves, but also the duration and intensity of the activity, the amount of the fees, the participation in the market, the number of transactions carried out, the planned activity and the maintenance of one Business premises .
As a purpose coming consumer spending of private household , rescheduling of other loans or co-financing of mortgage loans in question.
species
The most common case are personal loans from relatives , friends , acquaintances or colleagues . The special relationship of trust from the relationship plays the decisive role here. The customer loan is then a personal loan as soon as a natural person makes an advance payment , down payment or advance payment to a dealer or supplier before delivery takes place. A citizen loan is when private individuals grant loans to municipalities . A peer-to-peer loan is when both the lender and the borrower are private individuals; if this happens over the Internet , one speaks of crowdlending ( crowd investing ).
Private individuals can borrow money from one another via online credit exchanges. These platforms are an alternative to traditional banks, especially for those looking for loans with irregular incomes or unusual financing projects. The two most important online lending platforms in Germany are called Smava and Auxmoney . The Stiftung Warentest has analyzed their rates for borrowers. The ROSCA represents a special form of financing .
Legal issues
The personal loan is a loan within the meaning of Section 488 (1) BGB , which is also legally effective orally . For reasons of proof , however, it is advisable to conclude a loan agreement in writing - even in the case of a special relationship-based relationship of trust. This obliges the private lender to provide the borrower with an amount of money in the agreed amount. The borrower is required to a possible owed loan interest payable and due date to repay the provided loans. Typical loan terms and conditions are loan amount, loan interest, repayment , due date and any loan collateral . In the case of a non-interest-bearing (interest-free) loan, the borrower is entitled to repay the loan even without notice (Section 488 (3) BGB). Facility loans among family members and friends do not fall under the term of the lender according to § 491 Paragraph 1 BGB, § 14 BGB, so that the provisions on consumer loan contracts are not applicable.
If the loan interest is below the market interest rate or if interest-free personal loans are granted, this is classified as a gift for tax purposes . If a donation according to § 516 BGB is not available under civil law , an interest-free loan can be regarded as a donation between living persons for tax purposes according to § 7 para. 1 no. 1 ErbStG . This gives the recipient of an interest-free loan the opportunity to use the capital provided free of charge. Then, in the opinion of the Federal Fiscal Court (BFH), there is an increase in assets and thus also a donation of the (saved) loan interest. Because the acquisition of an object to which there is no legal entitlement is free of charge if it is not legally dependent on a consideration of the acquirer that compensates for the acquisition.
The threshold to commercial banking can be crossed quickly.
"1. A lending business in accordance with section 1 (1) sentence 2 no. 2 KWG is then operated commercially within the meaning of section 32 (1) sentence 1 KWG if the business is set up for a certain period of time and the operator pursues it with the intention of making a profit. A long-term business activity is a sustainable and planned, with the recognizable intention of continuation, i.e. H. not only occasional or accidental and only temporary activity. The scope of the business activity and the organizational effort made for this activity are irrelevant.
2. A lending transaction in accordance with section 1 (1) sentence 2 no. 2 KWG also exists if the loans are issued in the context of private asset management .
3. The extension of the term credit institution to the commercial operation of banking business through the 6th amendment to the KWG of October 22, 1997 (Federal Law Gazette I, 2518) is compatible with Community law. "
Risks of personal loan agreements
Freedom of form of loan agreements
Personal loans can be concluded informally . This possibility naturally leads to problems of evidence in the case of reclaims. For security reasons, personal loan agreements should therefore always be concluded in writing.
Collateral
All customary bank securities can also be agreed by private individuals. A legal risk arises here from the need to formulate security agreements in a legally correct manner and to monitor compliance with them.
statistics
According to a survey by the polling institute YouGov from 2012, 52% of Germans consider it normal to borrow money from friends or relatives. On the other hand, 37% rate private loans as questionable and find that friendship ends with money.
Web links
Individual evidence
- ↑ BFH, judgment of April 26, 2012, Az .: VR 2/11, BStBl. 2012 II p. 634
- ↑ ECJ judgment of September 15, 2011, Az .: C-180/10, Slaby and Kuæ, in DStRE 2011, 1417 para. 37
- ↑ BFH judgment in BFHE 233, 77, BStBl. II 2011, 524
- ↑ Stiftung Warentest: Privatkredite im Internet , In: Finanztest 6/2013 and test.de from May 21, 2013, accessed online on May 29, 2013
- ↑ Peter Derleder / Kai-Oliver Knops / Heinz Georg Bamberger (eds.): Handbook on German and European Banking Law , 2009, p. 493
- ↑ BFH, judgment of November 27, 2013, Az .: II R 25/12
- ^ VGH Kassel, decision of December 12, 2007, Az .: 6 TG 1743/07
- ↑ WELT.de of February 29, 2016, Unter Freunde
