Security agreement
The security agreement (also: security agreement or declaration of purpose ) is an agreement in credit agreements in the banking sector about the security purpose of loan collateral . The purpose of loan collateral is to secure loans.
The two contractual partners in the security agreement are called the security seller and the security buyer. The collateral provider undertakes to provide the security, the collateral taker undertakes to use the security only in accordance with the security purpose.
General
The security agreement must not be confused with the actual order for loan security (= security agreement). The security contract is usually an obligatory , therefore legally binding, i.e. non-in rem contract through which
- the protection seller obliges the protection buyer to order or leave certain security for a loan and
- the collateral taker obligates the collateral seller to dispose of the collateral only within the scope of the collateral purpose.
The collateral provider is a natural or legal person who provides the lender with loan security from their assets or is liable for the borrower with their assets . The buyer of protection is whoever accepts a loan security, usually a credit institute.
The later (or simultaneously) to be concluded with the credit agreement collateral security agreement (the actual collateral., For example, a transfer of ownership ) causes only the immediate right in rem transition (in the example the transfer of ownership to the bank). The legal basis for the provision of collateral is not the loan agreement, but the security agreement. The loan agreement is the cause of the provision of collateral, but does not in itself constitute the obligation to provide certain collateral.
Legal bases
The security agreement - not to be confused with the security agreement - is part of the loan agreement. Taken by itself, the security contract represents an independent contract within the meaning of Section 311 (1) of the German Civil Code ( BGB ) if it does not qualify as an ancillary agreement . The parties to the security agreement are the security taker (the credit institution ) and the security provider (either the borrower himself or a third party). The security agreements are usually drawn up by the lenders and then apply as general terms and conditions of the credit institutions , so that they are subject to judicial content control .
The term security contract was added in August 2008 in Section 1192 (1a) BGB in connection with the security land charge and is therefore a legal term .
Abstraction principle
The security contract (mandatory contract) is independent (abstract) of the actual collateral provision (real contract). If the security agreement z. B. subsequently effectively challenged ( § 142 BGB), it is void from the start. However, the security arrangement made prior to contestation due to the now null and void security agreement (e.g. transfer of ownership) remains effective. This principle of abstraction between the obligation and the fulfillment transaction , which dominates the BGB, can therefore only be reversed via unjust enrichment ( Section 812 (1) sentence 1 BGB): in the example, the security buyer has received the transfer of ownership without a legal reason, since the legal reason (the security agreement) is null and void has been omitted. By virtue of the right of enrichment, he is obliged to give back.
Exceptions to this exist if the security agreement according to § 138 BGB is void due to immorality (e.g. because of gagging or endangering creditors). Then namely the performance transaction (the transfer of ownership) is also void, because the immorality lies precisely in the execution of the service. This so-called errors identity is always present when the ground provided the security agreement in question also covers the credit-locking disposal business, such as in legal incapacity of the guarantor.
The abstraction principle also exists in the relationship between the loan agreement and the security agreement contained in it. The immorality of a loan does not automatically affect the collateral provided. These usually remain in place and serve to secure the right to repayment of the loan under enrichment law.
Dependency between credit and security
Usually there will be a link between the security agreement and the loan agreement. This bond already exists optically because the security agreement is part of the loan agreement. The security agreement can also contain the agreement that the transaction (transfer by way of security) should only be effective in the event that the obligation (loan disbursement) is fulfilled. This condition precedent ( Section 158 (1) BGB) then means that the assignment by way of security has no legal effect as long as the loan has not been paid off. By virtue of the party agreement, there is even an accessory between credit and credit security.
Content of the security agreement
The security agreement is informally effective and is usually concluded together with the loan agreement. The parties to the security agreement are the security seller and the security buyer. The collateral provider is whoever is allowed to dispose of the asset intended as collateral. This can be the borrower himself or a third party who is willing to be liable for the loan with a certain part of his assets or even all of his assets. The collateral taker is the credit institution granting the loan, which, through the subsequent order of the collateral, gains the legal power of disposal over the collateral. The object of collateral is precisely what type of collateral is to be made available to the collateral taker by the collateral provider. In addition to the type of security and the amount, it is also agreed in which form the security buyer should obtain power of disposal over the security.
Security purpose
The security purpose is the core of the security contract and regulates the credit claims for which the security object is to be liable and when the security event occurs. The collateral event is deemed to have occurred if the borrower does not pay in accordance with the contract on the claim that is not deferred. The collateral taker is then entitled to realize the collateral in accordance with the statutory provisions in order to cover the credit claim from the proceeds from the realization. The collateral event describes the conditions under which the collateral taker may realize the collateral provided by the collateral provider. These prerequisites must be closely aligned with the debtor's default.
The security contract thus protects the security seller and / or borrower from unjustified claims by the security buyer. Due to the security purpose, the security buyer may exercise less legal power than he was granted in the external relationship with the transfer of the loan security. Once the purpose of the security has been completed, the objects of security must be transferred back to the security provider in the form prescribed by law.
Security agreement
The content and scope of the contractual security agreement on non-accessory loan collateral are not specified by law, but are subject to free agreement. In contrast to the guarantee in Section 767, Paragraph 1, Clause 3 of the German Civil Code (BGB), there is no legal model against which deviating or supplementary regulations can be measured. Therefore, in accordance with Section 307 (3) of the German Civil Code (BGB), they cannot be checked in accordance with Section 307 (1) and (2) of the BGB. When transferring loans, the security provider can also raise the objections arising from a security agreement against a land charge against any purchaser ( Section 1192 (1a) BGB). The purchaser is therefore bound by the agreements from the security contract by virtue of the law.
Use of loan security
As mentioned, the institution may only dispose of the loan security within the scope of the security purpose. The purpose of security is to grant a loan, so that the bank is only allowed to realize the collateral if the borrower does not meet his obligations under the loan agreement. The bank is therefore not allowed to use loan collateral that has been ordered without its own interest. If the security agreement is culpably violated, the security seller is entitled to claims from positive breach of contract.
"Narrow" security purpose declaration
The "narrow" security purpose declaration is the normal case. It is called "narrow" because it allows only a limited scope of liability for loan collateral. With her, only a certain loan is secured that was the reason for the collateral provision. The "narrow" declaration of purpose only secures certain, precisely specified claims of the protection buyer against the borrower. The loan on which a "narrow" declaration of purpose is based is limited to a single, specifically determinable claim plus interest on the loan. "Narrow" declarations of purpose, which otherwise meet the legal requirements, are always effective due to the lack of a surprise effect. The protection provider may regularly expect that he will only provide loan collateral for a specific loan.
Extended security agreement (so-called general security clause)
The "broad" declaration of purpose secures all current, future, including conditional and limited claims of the collateral buyer against the borrower from the entire banking business relationship . With it, new credit claims can always be backed up as a security purpose, even if the credits were not yet available when the "broad" declaration of purpose was justified. In the context of the so-called case law , the BGH has often commented on this and restricted the applicability of the “broad” declaration of purpose to only a few cases. The "broad" security purpose declaration is therefore intended to extend the liability of loan collateral beyond the actual security purpose for a specific loan to include future claims of the bank from banking business relationships that may not yet arise at the time the collateral is provided. It not only secures specific loan repayment claims, but also all existing, future and conditional claims of the bank against its borrower. Such a broad security purpose declaration also secures the above-mentioned (statutory) enrichment claims of the credit institutions in the event of the ineffectiveness of the credit. The BGH generally accepts an agreement with an extended security purpose, but makes numerous exceptions to this. The constant jurisprudence of the BGH distinguishes surprising clauses ( § 305c BGB) between loans to the protection seller and collateral from a protection seller, which is intended to secure claims against third parties.
The borrower is the protection seller
Whether an extended security purpose declaration is effective depends on the general clause of § 307 Paragraph 1 BGB, since according to § 310 Paragraph 1 BGB the clause prohibitions of § 308 , § 309 BGB do not apply to the use of the GTC towards companies.
If the borrower himself acts as security provider, the form-based extension of the security purpose to all existing or future liabilities of the borrower is readily permitted. However, for the broad security purpose, only claims from the banking business relationship may be recorded.
An extended security agreement for the security seller's liabilities is permissible because the associated risk for the security seller is manageable with regard to the present and can be avoided with regard to the future. The same applies to liabilities that concern the protection seller as one (of several) joint and several debtors.
Protection seller is not a borrower
The extended security agreement of a mere security provider (who is not at the same time a borrower) is only permitted in exceptional cases according to the case law of the BGH. In case of doubt, however, it only extends to a specific loan that was the reason for the security agreement. This applies to both private individuals and companies as security providers. The mere protection seller cannot normally influence the type and scope of the loan. This also applies if a spouse provides security for the spouse's liabilities. In these cases, an extended security agreement cannot be legally binding.
However, if the mere security provider is the managing director or majority shareholder of a GmbH, general partner / general partner of a KG / OHG and is personally liable for loans to his company, an extended security agreement is applicable. Extended security agreements are only permitted if the security sender can influence the type and scope of the loan to the borrower. So if loans are granted to companies whose managing directors or majority shareholders or personally liable partners act as security providers, an extended security agreement is always permissible. The customary bank extension of the purpose of securing the land charge to include future credit claims is not unusual for companies providing security even if the mortgage is created to secure third-party debts.
The reverse is not true. A form-based extended declaration of purpose is generally ineffective if a businessman or a legal person vouches for the liabilities of its majority shareholder / personally liable partner or managing director; because for these security providers, too, the resulting comprehensive liability results in an uncontrollable risk if they are unable to control the borrower's resolution according to their will and interests.
An extended security purpose declaration is always surprising for the private security provider if it goes beyond the (original) reason for the security contract. The land charge established for a particular loan on the property of a third party cannot be extended to all existing and future debts of the borrower.
Accessory Collateral
Another distinction is needed in terms of the type of loan security. Accessory loan collateral is referred to as the loan collateral for which the effectiveness and extent of the collateral depend on the existence of a loan claim. Accessory securities are already defined by law as security interests, so that the security agreement has to provide less for these than for non-accessory securities. This is the case with guarantees , mortgages and pledges , for which there is a legal - and more specifically formulated by case law - regulation on the security purpose. The security agreement therefore does not need to contain a special claim on the part of the security provider to the restitution of the loan security if the security purpose is no longer applicable, because this is already achieved through the legally stipulated accessory security.
Non-accessory (“abstract”) collateral
Security land charges , security assignments or security transfers as non-accessory (so-called "abstract") rights do not have any statutory regulation on the purpose of security. With these types of collateral, this must be made up for in the contractual security agreement. In addition to agreeing a security purpose, it must in particular contain clear regulations on the (partial) retransfer of the loan collateral if the security purpose has finally (partially) ceased to exist.
This means that judicial content control is only possible with regard to the transparency requirement ( Section 307 (3) sentence 1 BGB, (3) sentence 2 in conjunction with Section 307 (1) sentence 2 BGB). If the security agreement does not fail as a surprising clause due to the inclusion control ( Section 305c (1) BGB), it is effective ( Section 306 (1) BGB).
Effects of the security agreement
Even in the case of non-accessory loan collateral (assignment of security, transfer of ownership and security land charge), there is a relatively close connection between loan security and credit claim by virtue of a legal transaction. The legal security contract establishes the link between loan security and credit claim approximately to the extent that it is provided for by law for ancillary security. The judicial review of the content of the security agreement made a significant contribution to this, largely remedying its deficiencies as an inappropriate disadvantage or as a violation of the transparency requirement. Between the underlying transaction and the security agreement there is a business unit within the meaning of Section 139 of the German Civil Code (BGB), since the security agreement is economically pointless without a claim to be secured. In the case of non-accessory loan collateral, the dogma of the lack of accessory security is therefore only valid to a limited extent, so that this loan collateral and the claim secured with it do not stand next to one another without reference.
Retransfer of the loan security
In order to avoid subsequent overcollateralization , the credit institutions are already obliged during the credit granting phase to transfer non-ancillary collateral that inappropriately exceed the credit limit back to the collateral provider; this prevents ineffective, inappropriate collateralisation. In the event of final loan repayment, an institution as the buyer of security is obliged (expressly in the security agreement or tacitly) to transfer the security back to the security seller if the purpose of the security no longer applies.
The obligation to retransfer loan collateral arises in particular in the case of non-accessory collateral because there is no automatic retransfer (as in the case of accessory collateral). In the case of a subsequent overcollateralisation, the collateral provider has a discretionary release claim for global collateral ordered on a form, even if the security contract contains no release clause or a discretionary release clause. In the case of global backups ordered using a form, neither an express release regulation nor a numerically determined coverage limit nor a clause for the evaluation of the objects of security are validity requirements. If the contract does not contain any express or an inadequate coverage limit, this limit, based on the realizable value of the collateral, is 110% of the secured claim.
literature
- Hans-Jürgen Lwowski: The right to secure a loan. Erich Schmidt, Berlin 2000, ISBN 3-503-05837-0 .
- Clemens Clemente: Right of the security land charge. 4th edition. RWS Verlag Kommunikationforum, Cologne 2008, ISBN 978-3-8145-8129-3 (in the appendix: compilation of common bank forms for declaration of purpose).
- Martin Gladenbeck: Loan security through land charges . Founded by Heinz Gaberdiel; 9th edition. Erich Schmidt Verlag, Berlin 2011, ISBN 978-3-503-13085-6 (in the appendix: Print and comment on the forms currently used in the German banking industry for declarations of purpose)
- Kai-Oliver Knops: consumer protection when establishing, terminating and taking over real estate credit relationships (loan establishment and termination, early repayment penalty, replacement borrower, redemption and assumption of land charges). Springer-Verlag, Heidelberg 2000, ISBN 3-540-67336-9 .
Individual evidence
- ↑ BGH NJW 1973, 615
- ↑ BGH WM 1994, 583
- ↑ BGH WM 1994, 1711
- ^ Thorwald Hellner, Stephan Steuer: Bankrecht und Bankpraxis. 1999, 4/46
- ↑ This is why the term security trust is also used; BGH WM 1989, 210
- ↑ BGH ZIP 1997, 1229 under II 3 b
- ↑ BGH NJW 1983, 1735
- ↑ Kai-Oliver Knops: Consumer protection in the establishment, termination and takeover of real estate loan relationships . 2000, p. 53.
- ↑ Knops: consumer protection in the justification. 2000, p. 52.
- ↑ representative of many judgments: BGH NJW 1990, 976
- ↑ BGHZ 114, 57, 72
- ↑ BGHZ 101, 29, 32 f.
- ^ BGH WM 1997, 1280
- ↑ BGH WM 2000, 1328
- ↑ BGH ZIP 2000, 65 in the case of a guarantee
- ↑ BGH NJW 1987, 1885
- ^ BGH WM 1998, 2186
- ↑ BGH WM 2001, 1517
- ↑ BGH NJW 2002, 3167
- ^ BGH WM 1989, 1926
- ^ BGH WM 1989, 88
- ^ Jan Wilhelm: Property Law. 2002, p. 787.
- ^ Jan Wilhelm: Property Law. 2002, p. 787.
- ↑ and other regulations, such as the agreement of a brokerage relationship for the transfer of ownership, regulations on the relationship to other securities for the same loan; Jan Wilhelm: Property law. 2002, p. 794.
- ↑ partial retransfer, especially in the case of subsequent over-security
- ↑ BGH NJW 2002, 2710
- ^ BGH NJW 1976, 53
- ↑ BGH NJW 1994, 2885
- ↑ Knops: consumer protection in the justification. 2000, p. 174; Knops relates this statement to the land charge that interests him alone
- ↑ BGH WM 1998, p. 227.
