Bauexperte
2011-06-16 13:13:33
- #1
Fee for loan account inadmissible
14.06.2011 | Business Law
A general terms and conditions clause of a credit institution that provides for a monthly administrative fee for managing the loan account for private loan customers is ineffective.
Repeatedly inadmissible clauses in banks' general terms and conditions
Once again, the Federal Court of Justice (BGH) had to decide on the validity of a provision in the general terms and conditions of a bank. This provision stipulated a monthly administrative fee for managing the loan account for loan customers. A registered consumer protection association filed a lawsuit requesting the prohibition of the use of the clause or, alternatively, that the clause not be applied to private customers.
Fee clause subject to full content review
Unlike the lower court, the BGH judges held the view that the disputed fee clause was not a price clause and therefore was not excluded from content review according to § 307 para. 3 sentence 1 of the German Civil Code (BGB) pursuant to § 307 para. 1 BGB. It only constitutes a price clause if the provision establishes the remuneration for a contractual service. This was not the case here.
Bank customer must only pay for services provided by the bank to him
According to the BGH, the account management fee cannot be regarded as compensation for a service to the customer. The bank manages the loan account solely for its own accounting or billing purposes. From the private customer’s point of view, a loan could just as well be handled through his regular current account. Since the bank therefore does not provide a service in the interest of the customer by managing the account, the fee cannot be classified as a service fee.
Annual statement does not change classification
The bank’s argument that the service to the customer included, among other things, issuing the annual interest statement for the tax office did not impress the BGH judges. This objection failed, not least because the fee was explicitly charged as an account management fee and thus expressly not as remuneration for issuing the annual statement. Therefore, content review was admissible.
Account management fee does not withstand content review
Considering the principles developed with regard to § 307 para. 1 BGB, the fee clause was also inadmissible because it conflicted with essential principles of statutory regulations. As a remuneration without consideration, it unreasonably disadvantaged the private customer contrary to the requirements of good faith. Therefore, the clause was ineffective.
(BGH, judgment of 07.06.2011, XI ZR 388/10)
Source: Haufe Taxes
14.06.2011 | Business Law
A general terms and conditions clause of a credit institution that provides for a monthly administrative fee for managing the loan account for private loan customers is ineffective.
Repeatedly inadmissible clauses in banks' general terms and conditions
Once again, the Federal Court of Justice (BGH) had to decide on the validity of a provision in the general terms and conditions of a bank. This provision stipulated a monthly administrative fee for managing the loan account for loan customers. A registered consumer protection association filed a lawsuit requesting the prohibition of the use of the clause or, alternatively, that the clause not be applied to private customers.
Fee clause subject to full content review
Unlike the lower court, the BGH judges held the view that the disputed fee clause was not a price clause and therefore was not excluded from content review according to § 307 para. 3 sentence 1 of the German Civil Code (BGB) pursuant to § 307 para. 1 BGB. It only constitutes a price clause if the provision establishes the remuneration for a contractual service. This was not the case here.
Bank customer must only pay for services provided by the bank to him
According to the BGH, the account management fee cannot be regarded as compensation for a service to the customer. The bank manages the loan account solely for its own accounting or billing purposes. From the private customer’s point of view, a loan could just as well be handled through his regular current account. Since the bank therefore does not provide a service in the interest of the customer by managing the account, the fee cannot be classified as a service fee.
Annual statement does not change classification
The bank’s argument that the service to the customer included, among other things, issuing the annual interest statement for the tax office did not impress the BGH judges. This objection failed, not least because the fee was explicitly charged as an account management fee and thus expressly not as remuneration for issuing the annual statement. Therefore, content review was admissible.
Account management fee does not withstand content review
Considering the principles developed with regard to § 307 para. 1 BGB, the fee clause was also inadmissible because it conflicted with essential principles of statutory regulations. As a remuneration without consideration, it unreasonably disadvantaged the private customer contrary to the requirements of good faith. Therefore, the clause was ineffective.
(BGH, judgment of 07.06.2011, XI ZR 388/10)
Source: Haufe Taxes