Withdrawal Loans | Right of withdrawal Loan
The borrower has a right of withdrawal for a consumer credit agreement after 355. A right of withdrawal does not exist for loan agreements, not for loan agreements, but for repayment agreements termination, if this prevents a lawsuit and if the entire amount (Article 247 para. (“3”) of the Articles of Association of repayment agreements to ordinary citizens) is smaller than the remainder of the Contracting Parties Civil Party, which corresponds to 2. 504 (3) or 505.
During the period, the lender is linked to his services. The expiration of the grace period is connected with the delivery of the contract offer to the borrower.
SGH, 24.01.2017 – XXI ZR 183/15
Applicants’ application for a decision to adjudicate is admissible. Above all, the applicants had the necessary interest in a rating. The set-off of the reciprocal claims of the parties does not result in compensation for the plaintiff, so that it is excluded from filing a settlement. The applicants granted the right to withdraw their letter of intent to enter into loan agreements under the rules applicable to consumer credit agreements. The applicants admitted.
The period within which the withdrawal had to be declared was also not passed on Thursday, the sixteenth anniversary, since the defendant had not sufficiently informed the applicants of the start of the withdrawal period. The respondent gave the wrong impression that, as far as the beginning of the period depends on the conclusion of the contract, the day on which that occurrence occurred should be included in the calculation of the time.
This had counteracted the requirements for distance contracts, which were significant here. For the withdrawal instructions, the accused could not rely on the legal fiction of the model, as it deviates from the model in the design of the revocation instructions. The applicants did not make improper use of their continued right of withdrawal. The Court of Appeal correctly considered that the action was the applicant for admissibility. a) In principle, however, an applicant who enforces the reclassification of a consumer credit agreement into a reimbursement obligation has first and foremost the right, on the basis of Article 357 (1) self-help, to file a settlement action in the version applicable until 2014 (in the future: old version) in connection with paragraphs 346 ff. of the Civil Code (BGB).
Civil Code against the defendant. If the complainant can and should be expected to pay a claim and if the objective of legal protection has been exhausted, he lacks what is also to be ex officio examined in the Appeals Board (Senate decision of 1 June 2014 – II ZR 247/12, 2014 World Cup 1821, No. 18, 98 f., 105 f., And of Oct. 11, 1989 – i, no. 208/87, WM 1990, 243), because he was the subject of the dispute in a dispute in the interests of a improved legal protection.
This is usually the case if the measure is to establish that a consumer credit agreement with the 357 para. 1 sentence 1 no. 1 BGB (old version) in conjunction with §§ 346 ff. Of the German Civil Code established consumer credit institutions. The plaintiff is entitled to determine the services it has provided, which it is entitled to according to 357 (1) sentence 1 BGB a. F. in connection with §§ 346 ff.
Accordingly, the complainants quantified their interest and principal payments for both loan agreements as part of the grounds for the review. Insofar as an applicant also demands compensation for the payment of interest and capital payments by him, he may rely on the rebuttable acceptance of the defendant, provided that in favor of the applicant between the first and second August of the 497 para in the case of the applicant in the case of the applicant in the second sentence of the 497 paragraph I sentence of 497 (1) of the BGB BGB in the case of the applicant in the case of the applicant in the second sentence of the 497 paragraph I sentence of § 2 BGB.
In the event that the version in effect on May 1, 2010 will be applied, uses in the order of two and a half percent above the base rate and other uses in the order of five percent above the base rate will be used (Senate Resolution of 11 August 2016 – II ZR 564/15, WM 2016, 1930, No. 58, intended for publication in the BGHZ). According to the Senate resolution of 11 February 2016 (XI ZR 366/15, WM 2016, 454, 5 et seq.), The application for the reclassification of a consumer credit agreement into a repayment obligation in such cases, which is not based on a coupled collective agreement, falls economically with the Default interest for the repayment of the services provided under the consumer credit agreement together.
For this reason, the complainant’s interest in a declaratory judgment is assessed economically in a judgment based on 357 (1) sentence 1 no. 1 BGB (old version) in conjunction with §§ 346 ff. BGB. This is the decisive difference to the case reports already contained in previous judgments of the Senate (Senate Judgments of 26 June 2008 – II ZR 132/07, WM 2008, 1260, marginal 48 et seq. And 16 November 2009 – II ZR 110 / 09, WM 2010, 331 No. 10) and the XII. June 2009 were met.
Civil Senate in the area of commercial tenancy law (Federal Court of Justice, decisions of 9. 5. 2008 – XII ZR 69/06, BGHZ 176, 301 marginal 37 and of 4. 5. 2002 – XII ZR 234/99, NJW-RR 2002, 1377) , 1378) and in which the parties complaining there seek an assessment of the persistence of permanent debt.
In this case, however, the declaration is only allowed in deviation from the regulation in exceptional cases, because in individual cases it is certain that the legal dispute will settle the disagreements of the parties (see Senate Decisions of 26. 6. 1995 – II ZR 8/94, BGHZ 130) , 115, 119 f.). With the additional claim, the defendant has made a settlement to which the complainants before the LG did not objectively recalled.
c) Since the complainants who are to be excluded from their request by interpretation, when determining the reclassification of the consumer credit agreements in repayment obligations, the determination of the existence of performance obligations under 357 para. 1 sentence 1 p. 1 BGB a. F. in connection with §§ 346 ff. The Civil Code as an object of its declaratory action is also not admissible because the complainants wanted the validity of the contradiction to be clarified as an unidentifiable preliminary question (see Senate Decisions of 16 November 2008 – II ZR 173/07, – II ZR 248/07 and – II ZR 260/07,).
Finally, the Higher Regional Court correctly stated that the respondent had wrongfully informed the applicants of their right of withdrawal, so that the period for the revocation had not yet elapsed in the determination of the opposition. a) The Higher Regional Court was right to assume that the applicants were entitled to revoke the contract in accordance with section 495 (1) BGB in the version applicable between the reference date and the day of the opposition.
2 (32) and (38) of the Introductory Act to the Civil Code (EGBGB), the plaintiffs were granted a right of revocation, which they had to inform pursuant to 355 BGB (old version) and in addition to the requirements for distance contracts. aa) Of course, contrary to the legal opinion of the Appeals Tribunal, the Respondent correctly informed the Applicants of the conditions on which the beginning of the Opposition Period depended.
The right of revocation was sufficient 355 para. 2 p. 1 BGB a. F. Contrary to the opposition of the cancellation, they have already clarified by the additional note “were transmitted in text form” at the end of the enumeration after the words “the time begins one day after you” that the beginning of the opposition period also the submission of the revocation in written Form requires.
This resulted in the rest from its written form with simultaneous reference to the publication of a copy of “this cancellation policy”. The revocation is not possible with the revocation instruction on which the judgment of the Fourth Chamber of the Supreme Court is based, which is cited by the revocation as evidence of its opinion. Civil Senate of 10 June 2009 (VIII ZR 219/08, 2010 World Cup, 721 No. 14) are not equal to the withdrawal of the Respondent.
The cancellation policy also has the further requirements of the 355 para. 2 p. 3 BGB old version and the 312 d para. 2 and 5 p. 2 BGB in the between 5. 8. 2009 and 5. 6. 2010 (future : old version) for the beginning of the opposition period sufficiently clarified.
The reference to § 313c Abs. 2 S. 1 No. 1 BGB in the version applicable here between 01.12.2004 and 10.06.2010 (in the future: old version) and on the 1 BGB-InfoV in the between 08.12. 2004 and the 10.06.2010 applicable version (in the future: old version) describes sufficiently vividly the conditions, of which also the beginning of the withdrawal period after the § 313d exp. 2 and 5 S. 2 BGB old version depends.
A reference to a specifically designated legislation does not violate the principle of clarity if the bill – as here the BGB and the regulation on information obligations in the Civil Code – is easy to understand for everyone, but in return helps to make the information understandable, clear and complete (Senate Resolution of 21 October 2016 – Ed. Zr. 434/15, Reprint No. 19, intended to be published in BGHZ).
Contrary to the objections to the opposition, the revocation instructions issued by the defendant sufficiently clarified that the beginning of the opposition period from the announcement of the contractual conditions including the general conditions in accordance with paragraph 2, p. 1 BGB (old version) in writing depends. In this context, the information contained in the list under the heading “Withdrawal” is sufficient; the beginning of the withdrawal period shall be preceded by a written notice of the written request, a written request by the consumer for a loan or a copy of the contract document or the consumer’s application for a loan and the general terms and conditions applicable to the contract.
Thus, the “contractual provisions including the general terms and conditions” in the sense of 312 c Abs. 2 S. 1 BGB (old version) were sufficiently marked. In contrast to the legal opinion of the Higher Regional Court, which was divided by the appeal, has the summary of the addition to the text of paragraph 301d para 2 BGB (old version), ie the period did not begin “before the date of the loan agreement,” with the insertion “The period begins one day after ….” does not obscure the beginning of time.
Both statements do not appear in their compilation the – false – appearance that upon submission and receipt of the application and the authorization on the same day after fulfillment of the remaining requirements, the withdrawal period not according to 187 paragraph 1 BGB, but according to 187 paragraph 2 BGB ( A. Buchmann, K & R 2008, 12, 14).
In addition, the information provided by the defendant on the right of withdrawal of several borrowers and – under the signature line – on the effects of the revocation of only one borrower (Senate decision of 12 Oct. 2016 – ZR 482/15 IXI, WM 2016, 2295 para 13 f.).
If the Respondent had – as was done under the heading “Consequences of Withdrawal” – the plaintiff on the consequences of the revocation in the inclusion of the wording in Annex 2 to 14 paragraph 1 and 3 BGB-InfoV in here between the deadline of the decision of 16 May In the case of the version applicable in 2009 and May 11, 2010 (hereafter: the old version), her withdrawal policy would have met the legal requirements of the applicant, contrary to what was claimed in the reply to the complaint.
The Ordinance (see VERfGE 114, 196, 235 et seq.) Was based on Article 3 (1) of the Federal Act of 28 June 2004 supplementing the provisions on distance contracts for financial services at a distance (BGBl 1 para. 4 p. 1 BGB-InfoV (old version), which was authoritative here.
BeverfG 13.09. 2005 – 2 BvF 2/03]; 303, 311 ff.), The obligation to provide information about the consequences of the revocation initiated by the entrepreneur is considered to be of equal importance and therefore fulfilled if the entrepreneur complies with the model for the declaration of revocation in accordance with Annex 2 to § 14 (1) and (3) BGB-InfoV a. F .. used.
According to the justification of the bill amending the provisions on distance contracts on financial services of BT-Drucks. 15/2946, p. 27, should the phrase contained in the design note (6) of the model “This may help you still meet the contractual payment obligations for the period until you cancel them?
Thus, the Entrepreneur has fulfilled his duty to inform without taking into account the legal fiction of the model for the revocation instruction, even if he has adopted the wording of the model for the consequences of the revocation (see Senate Resolution of 26. 9. 2016 – II ZR 309/15, WM 2016, 2215 edge 9). 3) The Respondent, who correctly emphasizes the counterclaim, has concealed the previously clear instruction on the consequences of the revocation by adding it under the heading “Obligation to pay interest and fee payments on conclusion of the contract before the deadline”.
Paragraph 312 (d) (6) of the old version of the Civil Code (BGB), by derogation of paragraph 357 (1), first sentence, of the Civil Code (see Greenwood, Consumer Protection in Distance Selling of the Financial Services Area, 2013, p ). 218; Knöfeln, ZGS 2004, 182, 185; Hartmann, CR 2010, 371, 377), to pay compensation for the value of the (financial) service provided under the revocation rules only if he was made aware of these legal consequences prior to the submission of his order and if: he had expressly consented to the provision of the service by the contractor before the expiry of the opposition period.
On the other hand, the addition in the defendant’s revocation proceedings gave the impression that it is sufficient for the indemnification obligation if the consumer agrees to the express agreement that the defendant “initiated the performance of the contract before the end of the opposition period”. The amendment was therefore not only incomplete, but also because it suggested that the obligation to compensate for loss of value depended on conditions lower than those laid down by law and could also discourage the consumer from exercising the right of withdrawal (see Senate Resolution of 24. May 2009 – II ZR 156/08, World Cup 2009, 1497, para. 17).
c) Contrary to the appeals, the appellate court has correctly acknowledged that the defendant relied on the fiction of the legality of the model up to ten years in the revocation declaration in accordance with 14 para. 1 and 3 BGB-InfoV. The day before the appeal is made. d) It is not the cause of the learning error for the failure to cancel the order, which is not relevant.
The decisive factor is whether the misleading version of the instruction prevents consumers from exercising their right of withdrawal (Senate judgments of 24 June 2016 – II ZR 564/15, WM 2016, 1930, para. 26 and II II ZR 482/15, WM 2016, 2295 para. 23).
The considerations which the Appeals Tribunal makes with regard to an abusive exercise of the right of objection are not contestable (see Senate Resolution of 11 June 2016 – II ZR 564/15, WM 2016, 1930, paras 42 et seq is challenging, in part, the appeal decision of the Court of First Instance’s apportionment of costs.
A connection limited to the cost component is not necessary, but nevertheless allowed (see BGH, Judgments of 28 July 1955 – II ZR 232/54, BGHZ 17, 392, 397 f, BFHE 102, 563, 566 f.). In accordance with the principles of the Senate decision of February 11, 2016 (XI ZR 366/15, WM 2016, 454 margins 5 ff.), The Federal Council has estimated the legal value at 42,546.60 instead of the amount of 29,000 euros as stated by the Higher Regional Court.
After the LG has declared the claimants jointly and severally liable for the counterclaim, they are also jointly and severally liable for reimbursement of costs in accordance with section 100 (4) sentence 1 ZPO (see BAG, order of May 11, 2016 – 9 AZR 434/15 , Abs. 48) and not only – as required in the following revision – liable for headings.
Since the prohibition of deterioration does not refer to the correction of the cost decision (Federal Supreme Court, decision of June 11, 1981 – VI ZR 35/79, MDR 1981, 928), which consists in the joint liability instead of the liability provisions by headlines (see BGH, decision of January 28, 2011 – V ZB 255/10, NJWRRR 2011, 588 No. 6), the Higher Regional Council may assign the liability-law disposition of the plaintiff in accordance with 100 para. 4 ZPO and not only according to 100 para. 1 ZPO.