RA Johannes Fiala
Interest rate reservation: Both decisions deal with the interest rate of loans with variable interest rates, for example with the bank clause in the loan agreement ‘The bank is entitled to change the interest rate if it deems this necessary (…)’. The lawyer calls this an ?interest reservation?, thus a discretion of the bank as exclusive authority to determine the height of the consideration for the money and/or capital loan. However, this right is not without limits: Because § 315 BGB forces the credit institute to keep to certain rules of the game ? in particular to pass on the reduction of the refinancing possibilities to the customer under certain circumstances (see BGH WM 1986, 580 f.). Time and occasion of the passing on of an interest reduction: The case law here requires a passing on of interest rate adjustments within one or a few months since a change in the refinancing options. As a reason for the obligation to pass on a reduction or increase in refinancing interest rates, case law cites a change in capital market interest rates in the relevant market segment of 0.2%. Situation with a loan with a fixed term and a shorter fixed interest rate: Often loan agreements have a longer term (e.g. 5, 10, 15 years), but only a fixed interest rate (promise of a fixed interest rate) for a shorter period. The customer of the credit institution is then surprisingly confronted with (compared to the market conditions) much higher interest rates from the bank at the end of the fixed interest period. In such a case, the borrower can change the bank, if it comes to no agreement on the amount of interest. The jurisdiction approves the customer with the expiry of the fixed interest rate the right to change the bank (BGH judgment 6.4.1989). A clause according to which the customer has only two weeks for a debt rescheduling to another bank or savings bank (since notification of the bank offer with the new conditions) would also be invalid: Hardly a customer then the preparation and settlement in such a case at such short notice into action (BGH judgment 06.04.1989). usual here is a statutory notice period of three months, so that the borrower has sufficient time to look for another credit institution. Transparency requirement: Investor Müller has become suspicious: He is now having his loan documents and the bank’s accounts looked through by an expert (cf. e.g. the list of experts at fiala4instalive.instawp.xyz): And lo and behold, the bank has used a ‘special interest calculation clause’ with him, which gives it even higher interest, without this being expressed in the indication of the so-called ‘initial annual percentage rate of charge’. The credit institute bases ?for the computation of the interest, the capital conditions at the beginning of the repayment year? Such clauses are also ineffective, because the interest-increasing effect is not sufficiently clear for the average customer (see BGH judgement of 30.04.1991). Investor Müller rejoices because this would make his loan even cheaper ? indignantly he asks his bank to recalculate the loan. The customer of the credit institute is not held first a organization complaint (e.g. on recalculation of the credit account) to submit: Rather, he can immediately sue for repayment of the unjust enrichment (§ 812 I 1 BGB) (cf. AG Bonn judgment of 10.07.1997). Basel-II: Occasionally, the credit industry argues that the creditworthiness of the customer has changed and that it is therefore justified to increase the interest rate at the expense of the borrower. However, this seems to be wrong in law, because an adjustment of the interest rates in case of variable interest rates according to an interest rate reservation (fixed loan period with variable interest rates) is only allowed to the credit institution if it is causally a ?change of the refinancing conditions for the bank caused by the capital market? (cf. BGH judgement of 06.03.1986). However, the bank may terminate the agreement in the event of a significant deterioration in creditworthiness. Any further “compensation” in favour of the bank, e.g. by way of increased “credit fees”, would be invalid (cf. LG Köln judgment of 5.3.1986). Burden of proof: The credit institution bears the burden of proof that the interest rates used as a basis for the settlement with the customer are fair (cf. LG Traunstein judgment of 10.11.1994, BGH judgment of 6.3.1986, BGHZ 97, 212). Disclosure of internal bank calculation: In many cases, credit institutions argue that they are not obliged to disclose the bank’s internal calculation when redeeming a loan (possibly prematurely): The credit institutions thus deliberately evade judicial control and leave it to the judge to arrive at an appropriate result by way of an estimate (§ 287 ZPO), often with the involvement of an expert: However, the position of the borrower has been considerably improved in this respect by a decision of the Federal Constitutional Court (1 BvR 2203/98 of 28.12.1999), which states that a company in the financial services sector cannot evade judicial review by citing a business secret and refusing to allow the judge to inspect internal calculation documents.