And another loan – The loan agreement
Image: “A Fool and His Money” by David Goehring. License: CC BY 2.0
Basically money loans and property loans to distinguish. For the property loan, see the following article: Basics of the leases – the loan in kind
This article only deals with the money loan. The corresponding regulations can be found in §§ 488 ff. BGB. §§ 491 ff. BGB contain special provisions on consumer loan agreements. In §§ 506 ff. BGB there are regulations on financial assistance. Rate delivery agreements are also regulated by law in § 510 BGB.
Term and demarcation
Of the content The loan contract results from Section 488 (1) BGB. There it says:
The loan relationship is not a synallagmatic one. The structural similarity with the rent is not to be overlooked. However, the special feature of the loan agreement is that no concrete thing is left, but only a monetary value. [Medicus / Lorenz, § 96 Rn. 570 f.]
The contract comes through Offer and acceptance condition, §§ 145 ff. BGB. He requires no form. However, this does not apply to consumer loan agreements, §§ 492 ff. BGB. [Looschelders, § 19 marg. 344]
Obligations of the contracting parties
The Duty of the lender, Of course, it is also possible for the borrower to transfer the agreed amount of money through the transfer of money, for example in the form of a bank transfer. By agreement, the payment to third parties is possible. [Medicus / Lorenz, § 96 Rn. 575]
If the lender does not fulfill his obligation, the rules of the general disability law apply. [Looschelders, § 19 marg. 354]
In addition, the lender has certain protection obligations. Although there is no general obligation to inform, however, this is to be assumed if the lender has a specific knowledge advantage. This may result in a claim for damages. [Medicus / Lorenz, § 96 Rn. 577]
The repayment of the loan is Principal obligation of the borrower. This obligation occurs at the end of the term. According to § 488 Abs. 3 S. 1 BGB occurs Due date with termination if there is no agreement on the term. The early repayment is gem. Section 488 (3) sentence 3 BGB on interest-bearing loans not allowed. An early repayment option can, however, be contractually agreed, even if the lender escapes interest income. [Medicus / Lorenz, § 96 Rn. 578 f.]
§ 489 BGB determines regulations for ordinary termination by the borrower. These can gem. § 489 Abs. 4 BGB are not contractually waived. In § 490 paragraph 2 BGB is also found Extraordinary right of termination for the borrower. Termination rights of the lender can be found in § 490 para. 1 and § 314 BGB.
As a further obligation of the borrower, § 488 para. 1 sentence 2 BGB defines the obligation to interest payment. The loan agreement can also be closed without interest. [Looschelders, § 19 marg. 353]
How the eradication has to be done is usually determined by contract. In most cases repayment is done in installments. Frequently, however, there are also special repayment rights. [Medicus / Lorenz, § 96 Rn. 584]
In the case of interest-bearing loan agreements, the borrower also has a secondary obligation to also accept the loan. [Looschelders, § 19 marg. 353]
If the borrower violates any of his obligations, the lender may Replacement of the delay damage and additionally demand default interest. [Medicus / Lorenz, § 96 Rn. 586]
Instead of resigning the lender gem. § 314 i.V.m. § 490 para. 3 BGB terminate the contract extraordinarily. As an important reason, the borrower must be at least two full, consecutive interest or installments in any case. Only in exceptional cases, another important reason is conceivable. [Medicus / Lorenz, § 96 Rn. 587]
For the consumer loan agreement, there are some special features. This is always to be respected.
In the §§ 491 ff. BGB find the special regulations for the consumer loan contract. This is Paid loan agreements between an entrepreneur as a lender and a consumer as a borrower. They have consumer-protective character, from which also their circumvention prohibition results (§ 511 BGB). Protected persons are not only consumers i.S.v. § 13 BGB, but gem. § 512 BGB also founders. [Medicus / Lorenz, § 96 Rn. 591]
No consumer loan exists in the cases of § 491 Abs. 2 and 3 BGB.
The Formal requirements the consumer loan contract can be § 492 Civil Code remove. In accordance with § 492 Abs. 1 BGB is written in principle required. Furthermore, the information in accordance with § 492 Abs. 2 BGB i.V.m. Art. 247 §§ 6-13 EGBGB which serve to inform the consumer. In addition, gem. § 493 BGB further information requirements. These obligations apply in accordance with. § 492 Abs. 4 BGB in principle also for powers of attorney.
Does the contract s.einem informality, § 494 BGB is relevant. In the cases of § 494 Abs. 1 BGB the contract is void. If there is an exception under § 494 Abs. 2 BGB, this nullity can be cured, even if the contract is subject to a change in content.
Section 495 (1) BGB grants the consumer a right of withdrawal. Exceptions to this result from § 495 para. 2 BGB.
right of termination
§ 498 BGB restricts the extraordinary right of termination of the lender. Likewise, §§ 499-502 BGB contains modified provisions concerning the right of termination of both the lender and the borrower.
Financial assistance to consumers
Often, there is no direct consumer loan agreement, but another form of financial assistance, such as Partial payment transactions in the payment deferral, which practically creates a trade credit. The same applies to Finance leases. For such financing aids, §§ 506 ff. BGB provide for further special regulations. Again, it is consumer protection law.
Installment agreements with consumers
How installment agreements between consumers and entrepreneurs are legally designed, can be found § 510 BGB.
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