Customers can terminate Rüruprenten and basic pensions at any time

– How insurers use ineffective terms and conditions and sales lies to cancel contracts –

New ruling by the Federal Court of Justice confirms general terminability

The Federal Court of Justice (BGH judgement of 01.12.2011, ref. IX ZR 79/11) recently ruled: The saved capital in Rürup contracts (also known as basic pensions) is generally not safe from execution even before the start of the pension and certainly not “insolvency-proof”, because the insolvency administrator can terminate such contracts. If insurance customers recognize that they were lured by the insurance mediator with an alleged “seizing protection of the Rüruprente” on the slippery slope, the question arises, how one can come again to the fortune formed with the insurer by own premium payment.

 

House purchase or Caribbean vacation financed through good friends without collateral

If you have good friends, you can borrow money from them and have them pre-finance your vacation, for example. The good friends could later want their money back, and quite amicably apply for a default summons, in order to then seize the insurance benefit. This outwardly unfriendly approach can lead to a pleasant debt settlement later on, and maybe even a pleasant settlement with the good friends in the end.

 

Ineffective clauses allow ordinary termination by policyholder

It could also be questioned whether the provisions in the General Insurance Conditions (AVB), which exclude the right of termination without any restriction and, moreover, merely want to make the Rürup contract premium-free in the event of termination, are possibly invalid. Nowhere has the legislator allowed the insurance companies to exclude any kind of termination with the customers, for example also the termination without notice or extraordinary termination “for good cause”. To continue to deprive the customer of the assets accumulated by the insurer as a result of his premium payments “by merely exempting him from paying premiums” despite extraordinary termination is likely to violate the prohibition of discrimination (§ 307 BGB) and to be more than surprising (§ 305c BGB).

In some legal departments of insurers, there is the mistaken belief that one can try to exceed legal limits – but in such cases, the courts consider the entire clause (e.g. on the exclusion of cancellation, or on the exemption from premium payment instead of capital repayment) to be null and void. This means that such contracts no longer have any effective exclusion of termination and, contrary to the wording of the GCI, can be terminated at any time – even contractually and ordinarily.

Numerous reasons for extraordinary termination of Rürup contracts without notice

Who possesses a Rürupvertrag, whose saved fortune with Hartz IV is taken into account, is because of the refused Hartz IV – achievement in an emergency situation, and can thus the Rürupvertrag – on which not only the legislator in law justifications referred – extraordinarily quit and must not be content then with a contribution release.

 

Since the first financial market crisis, extraordinary terminations of life insurance policies have become more frequent because one or the other insurer has become too unsound. The BGH has already decided on the right to terminate without notice “if the fulfilment of the insurance contract by the insurer has become uncertain”, which can never be excluded by AVB, in its judgement of 04.04.1951 (Ref. II ZR 32/50). In this constellation, too, the exemption from premium payment is obviously not a suitable solution in the case of extraordinary termination because the contract is not completely terminated. Clauses which then only provide for the release from premium payment and refuse to pay out the capital are likely to be simply null and void.

Can the Rürup contract be contested?

If, however, these provisions are invalid, then not even the ordinary right of termination is effectively excluded or the conversion into a non-contributory benefit exclusively provided for in the case of ordinary termination is not effectively agreed. Consequently, such ineffective regulations neither fulfil the tax requirements for a basic pension nor the requirement of the Code of Civil Procedure for the very limited attachment protection for an old-age pension at the level of social assistance. Not only because of the accompanying danger that one could be pursued by its Rürupvertrag at the end also still as tax evaders, also a contestation of the total contract would be in question apart from the notice.

Finally, the Rürup contract was touted with its tax benefits, seizure protection and Hartz IV security. If only one of the relevant conditions for the conclusion of the contract is omitted, this would already be reason enough to be allowed to contest the contract. Otherwise, there remains the somewhat less favorable termination or the threat of future losses due to seizure, offsetting for social benefits or tax reclaims.

 

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

 

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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