Capital preservation clause
The value clause (including price clause ; English value assurance clause ) is a clause in contracts , through the monetary obligations before changes in monetary value to be protected in order of inflation to escape (inflation).
The German law distinguishes between amounts of money - and monetary claims . Both types are on payment of money directed; the former have the performance of a by a multiple of the unit of money certain amount of money to the object, while the latter are directed to performance of a money amount, the extent be determined by a relationship with non-monetary law elements, such as the price of a commodity at a given time or Value of an object or an index number, and as a result are indeterminate in scope - measured in currency units. Valuation clauses are intended to compensate for the devaluation of money between the conclusion of the contract and the dates of payment.
The planned value protection should be linked to different reference values such as the
- Gold price (so-called gold clause ),
- Exchange rate of a foreign currency (so-called currency clause ),
- Consumer price index of the Federal Statistical Office ,
- Construction cost index or
- Heating oil price
can be achieved. Their admissibility results from § 1 Abs. 1 PrKlG.
The Currency Act (WährG), which came into force in June 1948, made the Deutsche Mark the sole legal tender in the Federal Republic of Germany. It applied the principle of nominal value (Mark 1948 = Mark 1998) and ignored the fall in the real value of the currency caused by inflation . It also consistently pursued agreements in business practice, which tried, with the help of value protection clauses, to prevent the decline in the real value of individual obligations . For this reason, in Section 3 sentence 2 of the Currency Act, it made value protection clauses subject to approval by the Deutsche Bundesbank , which pursued a restrictive approval policy. The provision contained a repressive ban on automatic sliding clauses, from which the Bundesbank could allow exceptions in individual cases at its own discretion . According to the approval principles of the Bundesbank of June 9, 1978 and the previous approval practice for § 3 WährG, sliding clauses could only be approved if the landlord was not allowed to terminate the contracts properly before ten years and if the change in the rent was due to the development was dependent on the cost of living index. Other reference values were practically not considered. The WährG was repealed in June 1998, so that the indexation ban ceased to apply in January 1999.
Which came in September 2007 in force price clause law (PrKlG) can price clauses especially in continuing obligation to, if the amount owed by the change is one of the Federal Statistical Office or the Statistical Office determined price index for the overall standard of living or from the Statistical Office of the European Community established consumer price index determined should be ( Abs. 1 PrKlG). The contracts must therefore be concluded for the life of one of the parties involved or have a term of at least 10 years. It also expressly exempts money and capital transactions, including financial instruments within the meaning of (11) KWG, as well as the related repurchase and loan transactions from the prohibition of indexation ( PrKlG). Only price clauses are prohibited if monetary debts are determined directly and automatically by the price or value of other goods or services that are not comparable with the agreed goods or services ( (1) PrKlG). This prohibition does not apply to so-called price escalation clauses . These include performance of title clauses , voltage clauses , cost elements clauses (each 2 PrKlG as described in § 1.), And can only lead to a reduction in the amount owed clauses. With the entry into force of the Price Clause Act on September 14, 2007, value safeguarding clauses that were neither exempt from approval nor approved and for which approval had not yet been applied for became conditionally effective with effect for the future ( PrKlG). Valuation clauses that are not subject to the exceptions are ineffective ( PrKlG).
In addition, an area exception applies to the index rent customary in rental contracts according to BGB , which is permitted , and for heat supply contracts according to the Ordinance on General Conditions for the Supply of District Heating of April 1980.
Economic aspects of the capital preservation clauses
The nominal value principle requires that the nominal value of debt amounts to money is decisive. According to this, it is not its intrinsic value but its face value that is decisive for the payment value of money ; the amount of fixed monetary debts remains fundamentally unaffected by the change in monetary value. The debtor releases himself by paying the face value of the debt . For this reason, for example, a loan of 100,000 DM taken out in 1985 had to be repaid by the borrower on the due date in 2000 with 100,000 DM (plus loan interest), regardless of whether and to what extent currency devaluation had taken place in the meantime. Assuming a cumulative devaluation of 30% during the credit period , the creditor actually got his credit back in 2000 with a real value (actual purchasing power in 1985) of 70%, i.e. 70,000 DM. In order to exclude such losses from currency devaluation, the interest of the creditors arose in compensating for the disadvantage of currency devaluation by means of value protection or index clauses. There is particular interest in long-term ongoing obligations ( rent , lease , leasehold , loan , leasing , energy supply , contracting , annuity , annuity ) because the more frequent changes in price levels have a more significant effect on them.
Apart from the fact that such clauses violate the prevailing nominal value principle, they also harbor economic dangers. If the debtor has to constantly adjust his monetary debts to the devaluation that has occurred without benefiting from inflation protection himself ( index wage ), he bears the risk of monetary devaluation alone. In addition, such clauses promote the development of inflation because they themselves have a price-driving effect and certain price increases caused by value protection clauses automatically lead to price increases in the contractual relationships secured by value protection clauses. This is particularly the case when identical value protection clauses refer to a large number of contractual relationships. They can also destroy trust in the currency.
Internationally, capital preservation clauses are particularly popular where hyperinflation causes the monetary value to affect long-term contracts in particular.
In Austria , the legislature saw itself prompted to restrict or eliminate certain value protection clauses, in particular gold clauses , in the interest of maintaining the domestic currency in their effect through statutory orders, for example through the Gold Clause Act of April 27, 1937, the ordinance of June 21 1939, the law of April 30, 1936 and the ordinance of November 16, 1940. Today, value protection clauses in the area of the Consumer Protection Act (KSchG) may only be agreed if the price index is intended to fluctuate in both directions. Valuation clauses that only provide for an increase in the rent violate the KSchG. Valuation clauses are permissible as long as they do not violate a legal prohibition or good morals. The Supreme Court has emphasized in numerous decisions that the definition of such clauses is neither illegal nor immoral in itself.
In Switzerland , capital preservation clauses are called “general index clauses”; they are permissible within the framework of general contractual and personal law restrictions. For example, the indexation of maintenance contributions for children born in or out of wedlock (Art. 156, Paragraph 2, Art. 319 of the Civil Code ) by the judge is generally permissible.
- Josef Dierdorf: Value protection clauses according to the new euro law: Presentation as part of the lecture series "Europe on the threshold to the single currency", Bonn, November 2, 1998 , Bonn: Center for European Economic Law, 1998, (SWB catalog no .: 07597293X) .
- Peter Kindler : Statutory interest claims in civil and commercial law: Plea for a credit market-oriented maturity interest rate , also habilitation thesis of the University of Konstanz, 1995, Tübingen: Mohr, 1996, ISBN 3-16-146551-2 .
- Hanns-Peter Kollmann: Negative interest: a legal and economic analysis , university thesis , Baden-Baden: Nomos, 2016, ISBN 978-3-8487-2831-2 .
- Kai-Jochen Neuhaus: Handbook of Business Premises Rent - Law Practice Administration Luchterhand, 4th edition 2011, 1572 pages with CD-ROM, ISBN 978-3-472-07998-9 .
- Ulrich Bemmann / Sylvia Schädlich: Contracting Handbuch 2003 , Deutscher Wirtschaftsdienst Munich, Neuwied, Cologne 2003, ISBN 978-3-8715-6555-7 .
- Guido Kirchhoff: Value protection clauses for euro liabilities Duncker & Humblot, Berlin 2006, ISBN 978-3-4281-1757-4 .
- For the identical use of the terms, see: Value protection clauses / price adjustment clauses. (No longer available online.) Destatis.de , archived from the original on November 14, 2014 ; accessed on April 5, 2019 .
- These include B. Clauses in terms of payment with which the supplier reserves the right to adjust the price of goods if his own costs increase .
- BGHZ 7, 134 ff.
- BVerwG, judgment of October 3, 1972, Az .: BVerwG IC 36.68
- Federal Gazette No. 109 of June 15, 1978
- German Bundestag, Stenographic Reports. Annexes to the shorthand reports. Printed matter , Volume 519, 1994, p. 20
- BVerwG, judgment of October 3, 1972, Az .: BVerwG IC 36.68
- BGE, judgment of November 23, 1972, 98 II 257