Bauexperte
2011-05-11 10:33:40
- #1
Ineffective Bank Terms and Conditions: No Processing Fees for Loan Issuance
10.05.2011 | Business Law
The Higher Regional Court (OLG) Karlsruhe declared a bank clause ineffective due to unreasonable disadvantage to customers and lack of transparency. The issue concerns a processing fee for acquisition loans. According to the clause, bank customers must pay 2% of the loan agreement, but at least 50 euros as a processing fee.
The Protection Association for Bank Customers e.V. filed an injunction
The Protection Association for Bank Customers e.V. sued the bank at the Karlsruhe Regional Court to cease the use of this clause. The Regional Court granted the injunction. The bank appealed but failed to gain understanding at the Higher Regional Court as well.
OLG overturned the clause
According to the OLG, the clauses are not transparent and the customer must not be charged a fee when the bank checks their creditworthiness. This is not a service but solely serves the bank’s financial interests.
Unreasonable disadvantage: effort is already compensated by interest
The price and service list of the bank containing this clause constitutes general terms and conditions, which are subject to legal review. The OLG ruled the bank clause ineffective due to unreasonable disadvantage to customers and ordered the bank to cease further use of the clause. The challenged clause unreasonably disadvantages consumers and is therefore ineffective pursuant to § 307 of the German Civil Code (BGB).
Violation of the transparency requirement
This already results from the lack of transparency of the clause. The transparency requirement (§ 307 para. 1 sentence 2 BGB) requires the user to present the rights and obligations of their contracting partner as clearly and understandably as possible. The economic disadvantages of a provision must be made clear. Among other things, the clause is non-transparent because the time when the fee arises and the manner of payment are unclear.
In particular, it is not discernible to the customer when and under what conditions the fee arises, nor how it is to be paid. It is also uncertain whether and, if so, how the bank reimburses the fee in the event of early termination of the contract.
Compensated administrative effort is not a customer service
The ineffectiveness also results from the fact that the invoiced effort serves the bank’s financial interests and is incompatible with the essential basic ideas of § 488 para. 1 sentence 2 BGB.
According to this provision, the borrower is obliged to pay an owed interest and to repay the loaned capital upon maturity.
A processing fee as a flat rate does not belong to the main services provided by law for the provision of capital.
However, the senate has permitted the appeal for the defendant, as the Federal Court of Justice (BGH) has not yet made a fundamental decision on this contentious issue.
(OLG Karlsruhe, judgment of 03.05.2011, 17 U 192/10).
Source: Haufe.Taxes
Best regards
10.05.2011 | Business Law
The Higher Regional Court (OLG) Karlsruhe declared a bank clause ineffective due to unreasonable disadvantage to customers and lack of transparency. The issue concerns a processing fee for acquisition loans. According to the clause, bank customers must pay 2% of the loan agreement, but at least 50 euros as a processing fee.
The Protection Association for Bank Customers e.V. filed an injunction
The Protection Association for Bank Customers e.V. sued the bank at the Karlsruhe Regional Court to cease the use of this clause. The Regional Court granted the injunction. The bank appealed but failed to gain understanding at the Higher Regional Court as well.
OLG overturned the clause
According to the OLG, the clauses are not transparent and the customer must not be charged a fee when the bank checks their creditworthiness. This is not a service but solely serves the bank’s financial interests.
Unreasonable disadvantage: effort is already compensated by interest
The price and service list of the bank containing this clause constitutes general terms and conditions, which are subject to legal review. The OLG ruled the bank clause ineffective due to unreasonable disadvantage to customers and ordered the bank to cease further use of the clause. The challenged clause unreasonably disadvantages consumers and is therefore ineffective pursuant to § 307 of the German Civil Code (BGB).
Violation of the transparency requirement
This already results from the lack of transparency of the clause. The transparency requirement (§ 307 para. 1 sentence 2 BGB) requires the user to present the rights and obligations of their contracting partner as clearly and understandably as possible. The economic disadvantages of a provision must be made clear. Among other things, the clause is non-transparent because the time when the fee arises and the manner of payment are unclear.
In particular, it is not discernible to the customer when and under what conditions the fee arises, nor how it is to be paid. It is also uncertain whether and, if so, how the bank reimburses the fee in the event of early termination of the contract.
Compensated administrative effort is not a customer service
The ineffectiveness also results from the fact that the invoiced effort serves the bank’s financial interests and is incompatible with the essential basic ideas of § 488 para. 1 sentence 2 BGB.
According to this provision, the borrower is obliged to pay an owed interest and to repay the loaned capital upon maturity.
A processing fee as a flat rate does not belong to the main services provided by law for the provision of capital.
However, the senate has permitted the appeal for the defendant, as the Federal Court of Justice (BGH) has not yet made a fundamental decision on this contentious issue.
(OLG Karlsruhe, judgment of 03.05.2011, 17 U 192/10).
Source: Haufe.Taxes
Best regards