It is a situation that is quite commonplace when applying for a loan . The bank is not completely convinced of the creditworthiness and the collateral offered for a loan. It makes it clear to the potential borrower that you are only willing to provide the loan you need by placing a loan guarantee. So the borrower and usually the spouse, life partner or another family member is often willing to sign under the loan agreement. The bank is satisfied, because it is now very well secured by 2 persons with equal rights in case of imminent loan default . All right?
Credit burst despite guarantor: who is responsible and bears the damage?
Not at all, because what happens if the credit still bursts and also the supposed security by the second borrower turns out to be a soap bubble? Thus, the loan bureau was not in a position to be financially sound and currently is not in a position to fulfill its guarantee obligations under the loan agreement? Has the bank been knowingly cheated here? Or has the bank simply refrained from conducting a detailed examination of the guarantor’s financial situation at the time of signing the loan? It is therefore necessary to determine who the victim is here and acted grossly negligent or immoral. However, there is no clear legal line to date.
Groundbreaking verdict of the Federal Court?
It was not until the end of last year that the Federal Court had to make a decision in a contentious case. With the result that the decision was made in favor of the defendant borrower and his insolvent wife. Judge Richter justified this decision by saying that his wife was “financially crassly overwhelmed” by the joint liability. This “blatant financial overcharge” applies whenever the attachable income and assets of the guarantor are not even sufficient to service the current interest payments on the loan. The credit agreement was thus classified as “immoral” (judgment of 15 November 2016 – XI ZR 32/16).
The background of the decision: The borrower’s wife had signed in the 90s, the credit agreement of her spouse with because the bank had demanded the position of a loan guarantee. A situation that often creates a high psychological pressure and leads to ill-considered actions.
Guarantees for a loan are often taken over hastily
Especially when it comes to support the partner in his credit request in the best possible way, in which one vouches for her, there is an immense psychological pressure behind it. After all, one wants to help and also to maintain peace in the relationship. Also often the decision to take over a credit guarantee of the own advantage, which results from the credit, in the foreground. Nevertheless, anyone who takes out a loan guarantee should be aware of the responsibility of this act. Because the current judgment of the BGH is not a license for the consequences of accepting such a guarantee.