Federal agency omits legal fortune imputation with Rürup savers – employment agency ignores will of the legislator

– How insurers’ lies are believed and harm the middle class by the millions –

No security for imputation due to Hartz IV and other social benefits

In an admirable act of lobbying, life insurers have succeeded in persuading intermediaries, customers and even the Federal Employment Agency that the capital saved for Rürup pensions would be safe from exploitation in the event of need for assistance – such as in the case of a Hartz IV application. In fact, however, the exclusion of realisation within narrow limits serves to ensure that the pension saver really only receives his capital as a lifelong pension and cannot consume it at any time beforehand for his own consumption. But if the state would have to pay Hartz IV or other social benefits – or even legal aid – it can demand the prior consumption of the Rürup capital, as is expressly stated in the explanatory memorandum to the seizure-protected old-age provision and as is the intention of the legislator. As stated there, an extraordinary right of termination under special circumstances such as in particular – mentioned there as an example – the refusal of Hartz IV benefits because of the asset imputation of the saved Rürup capital may not be excluded under any circumstances even in the case of a – nevertheless only contractual – ordinary prohibition of termination. The state has no interest in immediately granting social benefits to the Rürup saver so that his assets in the Rürup contract are protected for a more lavish supplementary pension later.

Ineffective clauses allow ordinary termination by policyholder

What’s more, even the provisions in the General Terms and Conditions of Insurance (GTCI) that exclude the right of termination without restriction and, in addition, only want to make the Rürup contract non-contributory in the event of termination, are to be questioned: They could be simply ineffective as contradictory to the will of the legislator. Nowhere has the legislator allowed the insurance companies to exclude any kind of termination with the consequence of complete contract termination with the customers, so 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 apparently the mistaken belief that it is possible to try to exceed legal limits – but in such cases the courts regard the entire clause (e.g. on the exclusion of cancellation, or on the exemption from premium payment instead of capital repayment) as 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 Rürup contract, whose saved fortune with Hartz IV is taken into account, is because of the refused Hartz IV – achievement in a distress situation, and can thus the Rürup contract – on which not only the legislator in law justifications referred clearly enough – extraordinarily quit and must not be content then with a contribution release. Only the payment of the Rürup capital after notice corresponds to the conception of the legislator to be able to count this with Hartz IV.


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 premium waiver is obviously not a suitable solution in the event of extraordinary termination, because the contract is not completely terminated and the capital is still at risk with the unsound insurer. In addition, a customer who has paid in a single premium, for example, or who has subsequently already waived contributions, would in this case no longer have any possibility at all of saving his capital by terminating the policy with the insurer that has become unsound, in accordance with the BGH. Clauses which then only provide for the exemption from premium payment and refuse to pay out the capital are therefore also 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 unfortunately neither fulfil the tax requirements of 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 Rürup contract at the end also still as tax evaders, also a contestation of the total contract would be in question apart from the notice.

In addition the Rürup contract with the tax privilege, the seizing protection and the Hartz IV security was advertised and promoted. 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 on grounds of deception. Otherwise, the somewhat less favourable option of termination with payment of the actuarial reserve or the deliberate acceptance of the threat of future losses due to seizure, offsetting against social benefits or tax reclaims remains.

Legislator makes clear right of termination with repayment of capital

The fact that an extraordinary right of termination would not exist according to the German Civil Code is therefore incorrect, because this statutory right of termination cannot be excluded by contract at all. Particularly with regard to the asset imputation in the case of Hartz IV/ALG II, the legislature has already expressly pointed this out in Bundestag printed paper 16/886:

“Unaffected by this exclusion of ordinary termination remains the possibility, within narrow limits, also for life insurance, of extraordinary termination pursuant to §313 para. 3, § 314 of the Civil Code or exceptionally as a result of other unreasonableness. A continuation of the insurance contract could, for example, be unreasonable for the policyholder. if termination is necessary because the policyholder is denied benefits under SGB II due to existing pecuniary claims under the contract.”


In view of this clear statement, it is obvious to judge the contrary statements of insurers as deliberate misleading. This also applies to the assertion that in the case of Rürup contracts there is already a statutory exclusion of realisation, just as in the case of the tax-subsidised Riester contract. One can no longer believe in a pure error or oversight on the part of the insurers here.


The General Association recognised the legal risk in its opinion of August 2006:

In principle, the employment agencies have to provide benefits to job-seekers who are capable of working if they are in need, in accordance with § 19 SGB II. If a person seeking assistance were denied benefits, for whatever reason, this would also have consequences for his or her ability to agree to an effective waiver of disposition. Because the failure of the achievements justifies – so at least the present law justification – always a special right of termination (in accordance with § 313 exp. 3, § 314 BGB) for the concerning, which § 165 exp. 3 VVG. In this case, it would also no longer be possible for the person seeking assistance to claim the allowance pursuant to § 12 para. 2 No. 3 SGB II; this requires the agreement of an effective waiver of disposal.

Ultimately, it would thus not be possible for either the policyholder or the insurer to assess ex ante whether a contract concluded between them pursuant to section 165 para. 3 VVG is legally effective or not.


That’s exactly the legal situation.


Employment agencies unlawfully spare the Rürup capital

According to established case law, it is not reasonable for the state to expect self-employed persons who have made provisions for old age with a private life insurance policy to be on its pocket as social cases: Therefore, self-employed persons can (only upon application to the court according to § 765a ZPO) prevent the seizure of current pensions in this respect. In the pension phase, this will often be more than can be saved “protected against seizure” in accordance with § 851c ZPO.

However, the capital before the start of the pension cannot be protected in this way. However, to the detriment of the taxpayer and the unemployment contributions to be paid by employers and employees, the Employment Agency has so far regularly not applied this crediting option, thus ignoring the will of the legislator. Here the lobbying of the insurers, who have even convinced the employment agency of an incorrect legal position, lead to damage to the middle class and the taxpayer as a result of unnecessarily high unemployment contributions, in order to compensate for the funds lost through the lack of legally compliant crediting and utilisation of the Rürup capital. Apparently, the Federal Court of Auditors has not yet become aware of this maladministration.


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

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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala ist seit mehr als 25 Jahren als Jurist und Rechts­anwalt mit eigener Kanzlei in München tätig. Er beschäftigt sich unter anderem intensiv mit den Themen Immobilien­wirtschaft, Finanz­recht sowie Steuer- und Versicherungs­recht. Die zahl­reichen Stationen seines beruf­lichen Werde­gangs ermöglichen es ihm, für seine Mandanten ganz­heitlich beratend und im Streit­fall juristisch tätig zu werden.
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