Remuneration for early repayment of loans
The Commission considers that the sanction is not a contractual penalty but a compensation for the Bank’s financial losses. In this case, the donor institution demands compensation. However, he often has to pay compensation to the bank. Explains to you when and how early repayment of the loan in frequent scenarios makes sense!
Personal advice in legal matters
A claim for repayment under 812 I BGB was not due to the classmates, since the payment of the early repayment did not take place without legal reason.
Hunhye could not object to the validity of this contract on the grounds that they had been granted a right to ordinary or extraordinary termination of the loan agreements or a right against Hunhye & Co. Licht to terminate the contract against reimbursement of the loss of benefits. On the contrary, the problem of the premature termination of the contract and the purchase price to be paid for it was left to the free approval of the parties. In this case, the premature termination of the contract with the contracting parties is agreed.
Also, the cancellation agreement was not null and void according to 138 I BGB, since the amount of early repayment was not immoral. The loss of the bank as a result of the early repayment of the loan was based on a mortgage reinvestment rate of 7.34 percent in September 1993 and one bank.
The applicant further submits that the defendant continues to be entitled to 0.8% for the period between receipt of the repayment amount and reinvestment. H. to repay the debt to compensate for the additional administrative costs and a risk of loss of interest. The actual damages exceed this value by only 8.6 percent and therefore in no case justify the subjective suspicion of immorality.
The mountain. It should be noted, however, that the two credit agreements are not governed by a unilateral declaration of class CL. According to the findings of the BerGer, which were not challenged by the examination, the loans were a cover pool for bonds (§ 247 II 2 BGB old version).
Because the cause for the will to prepayment of the loan lies in the personality of the class, they also had no right to extraordinary dissolution from an important basic stock. However, the view of the mountain is wrong. Whether and under what conditions the borrower may demand the early repayment of a fixed rate loan for payment of a early repayment fee in the case of a fixed rate loan is controversial in case law and in specialist literature.
c) The counter-conception underlying the revision also grants the borrower, under certain conditions, an application for the repayment of the loan agreement against payment of an early repayment fee to be valued from a loss point of view and lists in particular case examples such as the intended sale of the loaned object. The right of withdrawal from the contract is based in part on the principle of consideration or consideration, which also applies to the loan agreement.
d) The recognizing Federal Council shares this view that the borrower’s claim for prepayment of the loan can in any case be met in the case of a different usability of the loaned object.
Contrary to the above, however, it regards this as a right not to terminate or terminate a contract, but to change only the terms of the contract without limiting its scope. If the borrower approaches the lender with a request for early repayment of the loan for a reasonable early repayment fee, that application is not aimed at abolishing the contractual obligation, but ultimately at providing only the early service.
By prematurely repaying the loan and paying the premature repayment penalty, the lender must be put in the same economic position as it would have been if the loan had continued for the originally agreed fixed period and paid interest. Thus, the amendment to the loan agreement intended by the borrower in such cases ultimately confines itself to the termination of the contractually limited block of service, ie an earlier settlement date.
In principle, he has a legal right to unchanged fulfillment of the contractual obligations. The repayment and interest rate schedules of the individual loan agreements are part of their business calculation, which they can not accept without interruption. This is also supported by the Federal legislature’s intention to repay 247 BGB aF to secure medium and long-term interest-bearing fixed-interest loans against premature termination by the borrower because of their maturity- and interest-adequate refinancing (see BT-Dr 10/4741 , P. 20 ff.).
If the lender would allow the borrower to maintain the unchanged execution of the loan agreement even in the case of a planned sale of the leased property, he could thwart the purchase. This would de facto prevent the borrower from otherwise using the encumbered property. This would be an attack on the economic capacity of the borrower, who wants to secure the right – as 1136 BGB shows – especially in the case of real estate liens (see BGHZ 76, 371 (373)).
In such cases, it is also to be expected that the lender pays the loan prematurely if it does not cause any material damage. Because the borrower’s claim for the loan’s maturity is justified by maintaining the economic leeway, the reason for the purchase of the loaned property is irrelevant. The claim therefore arises in the case of a sale on private grounds (eg divorce, sickness, unemployment, over-indebtedness, relocation) and the exploitation of an advantageous opportunity (Nobbe, paragraph 839, by A. Woenzel, in: Metz / Wenzel, para. 230).
The classmates thus had the right to agree to the premature repayment of the loan for a prepayment penalty, which protected the defendant’s interest, so that the defendant was not entitled, contrary to the opinion of BerGer, a “price” up to the upper limit of 138 BGB for their consent to demand me.
Instead, she could only demand compensation for the disadvantages caused by the maturity of the loan. (b) If the advance payment received by the claimant by the claimant exceeds the penalties associated with the early repayment of the loan, the applicant would be disproportionately enriched by the difference and obliged to repay to that extent.
Contrary to BerGer’s view, it could not assert the agreement of the contracting parties on early loan equalization as the legal basis for the benefit received. It does not matter if the mountain is. is to be conformed by the fact that the AI. has not recently maintained its reservation reservation against the amount of the early repayment penalty.
Even if the defendant had relinquished the reservation and therewith reached an agreement between the parties on the amount of the preferential sentence, he could not rely on that fact if he applied in that way for an excessively preferential sentence, thus rendering his contractual obligation to consent Repayment of the loan against a corresponding compensation.
According to the current state of the facts and disputes, it is not possible to determine whether the classmates paid 46731.03 DEM more than the BKl. owed premature repayment of the compensation and, if so, what the difference is. The mountain. has a loss for the company BerGer. calculated from the prepayment of the two loans totaling DEM 43024.02.
Contrary to BerGer’s opinion, if this value is used, the class has a claim for recovery, but only in the order of 3707.01 Deutschmarks. It also contains in its principles an inaccuracy to the detriment of the creditor. a) A house bank can calculate the economic damage caused by the prepayment of a loan in different ways.
Basically, the same as in the determination of the non-performance loss in case of failure of the loan agreement due to the non-acceptance of the loan (see Federal Council, NJW 1991, 1817 = LM H. 2/1992 252 BGB No. 47 = WC 1991, 760). aa) The interest margin loss corresponds to the loss of net income from the loan repaid early.
This difference is the amount of the risk from the repaid loan (so-called risk premium) and – insofar as BayernLB does not require special fees depending on the term apart from the lending rates – for the processing costs incurred during the term of the loan. Contrary to the opinion of the revision is the mountain. also agree that the statements in the literature (Reifner, VuR 1996, 315 (316), Weihrt, ZIP 1997, 481 (485)) can not be traced back to the rejection of the interest margin compensation since any repayment of a loan becomes a It would lead to the re-admission (usually by the real estate buyer) of the same or another financial institution and that in the whole system of mortgage loans the total coverage of the loan would remain invariable.
It is also allowed to make use of the design possibilities of the 287 ZPO and – like Berger. it did – the relevant calculation factors in the estimation procedure on the basis of statistical data in the monthly reports of Dt. B) A decline in interest rates exceeding the interest margin loss occurs when the Dt. For the remainder of the repayment of the debt debt loan, the debt may only be repaid at an interest rate below the contractual interest rate.
cc) Both with regard to the loss of interest margin and in the event of a decrease in interest rates, the loss amounts that have arisen for the entire duration of the legally secured interest expectation are discounted to the day of settlement of the prepayment penalty (Senate, WM 1991, 761 (762)). Like the mountains. has rightly applied, an interest rate of the order of magnitude of the active reinvestment interest rate must be applied.
c) It is often not possible or meaningful for a house bank to reinvest funds that have been released through early repayment of a loan matching maturity in similar loans. Only such an investment makes sense for them, especially as reinvestment in practice would be at the expense of their other new entrant (Canaris and Metz, as above) by repaying loans in the same type of loan.
If a credit institution chooses this calculation method, the starting point for the determination of its economic loss from the credit prepayment date is the difference between the contractual interest rate and the interest rate of the capital market instruments issued by public debtors maturing in accordance with the remaining term of the loan to be repaid. The difference between the contractual interest rate on the loan to be repaid and the interest on the capital market is reduced by appropriate values both for the reduced administrative costs and for the credit repayment risk which no longer applies.
The interest loss for the remaining term of the loan to be repaid, calculated on the basis of the net interest rate reduction to be determined, shall then be discounted to the day on which default interest is settled. Here, too, the current reinvestment rate, ie the interest on maturity-congruent capital market securities of public-sector borrowers, must be taken as a basis. d) In addition, BayernLB may demand appropriate remuneration for the administrative costs associated with the prepayment of the loan.
However, contrary to Berger’s contention, it does not seem appropriate to use a certain proportion of the loan amount as a starting point for the calculation of expenditure. In this case, the bank has calculated its disadvantageous amount from the prepayment of the two loans on the basis of a maturity-matched capital market investment.
The mountains. has rightly not pursued this approach, but has focused on reinvesting in mortgage-backed loans. Therefore, it is necessary to determine the damage to the bank on the basis of a matching maturity capital investment taking into account the above principles.