Revocation joker and processing fee for loans
Wirsing Hass Zoller Attorneys at Law
11. March 2015
1. To which types of loan agreements is this BGH case law applicable?
The case law of the Federal Court of Justice is based on consumer protection law, which restricts private autonomy. Since the legislator makes the general assumption that both the experience and the negotiating power of the professional market participant far outweigh those of the private end consumer, revocation rights are prescribed in certain constellations, the existence of which must be correctly explained to the consumer. Furthermore, the consumer is protected against unfairly disadvantageous clauses in general terms and conditions. The Federal Court of Justice (BGH) has recognized a conflict between the practice followed for many years and the statutory requirements, both in the area of revocation instructions and in the area of processing fees, and has even turned away from its earlier case law in some cases.
2. Are there also chances for professional borrowers to invoke this case law?
Even if numerous lawyers try to apply this case law to loans that serve business or other productive purposes, the answer to the question is a clear “no”. Consumer protection prohibits generalizing these ideas and pulling business loans or other loans made by professional borrowers under this jurisdiction as well. This shall not be affected even if the credit institution has inadvertently used an incorrect contract form. It is the content of the transaction that matters, not the outward form. There is no revocation for professional borrowers. Any processing fees paid also remain with the lender.
3. What deadlines must be observed?
So far, the Federal Court of Justice has only given clear guidance on the issue of processing fees. All processing fees paid up to 2011 can no longer be reclaimed today, unless measures to prevent the statute of limitations were taken by December 31, 2014. As far as the revocation issue is concerned, there are different opinions. However, one opinion that is gaining ground draws the customer’s attention to the fact that legal peace must prevail in this area as well, i.e., revocation rights cannot be exercised “until never-never day. However, there are no clear legislative requirements in this regard; even the case law of the highest courts has not yet made a clear statement in this regard.