What is a “no-take-off allowance”?
In banking law, the non-acceptance fee denotes the damagesthat the borrower has to pay to the lender if he does not accept the loan despite a contractual obligation and thus commits a breach of contract. The lender’s claim to claim damages instead of performance results from Section 280 Paragraph 1, Paragraph 3 and Section 281 of the German Civil Code, explains lawyer Sascha C. Fürstenow from the FÜRSTENOW law firm.
The calculation of the non-acceptance compensation
The bank can calculate the damage in two ways: the active-active calculation method and the active-passive method.
Within the so-called active-active method, the lender can claim the net interest profit as their lost profit according to § 252 BGB (so-called interest margin damage). This is calculated on the basis of the difference between the originally agreed interest rate and the current interest rates for hypothetically extended fixed-interest new loans.
However, the active-passive method is often used. According to this method, damage caused by early repayment of the loan at the bank is calculated from the difference between the interest that the borrower would have paid if the loan had been accepted and the return that would result from the fictitious reinvestment, according to Fürstenow.
How can borrowers avoid or reduce the non-purchase compensation?
In the following, RA Fürstenow explains how borrowers can circumvent or reduce the case of non-acceptance compensation.
Mistakes in the loan agreements
If a loan agreement has been signed, it can generally be revoked within 14 days. However, this does not start if errors can be proven in the contract. If the contract is actually flawed, the borrower can declare the revocation at any time without having to fear the declaration of non-acceptance. This can be the case, for example, if a incorrect cancellation policy present. In particular, forward loan contracts are flawed, which can now be worthwhile for the borrower. However, this does not (any longer) apply to old contracts, i.e. to contracts that were concluded after June 10, 2010, because the legislature has ended the “eternal” right of withdrawal.
Other formal errors, such as incomplete mandatory information, can ensure that the non-acceptance fee is saved, explains lawyer Fürstenow. If the necessary information for the start of the period is not listed in the contract or information about the legal consequences is not listed, the non-acceptance fee does not have to be paid. The same applies if references to related business, additional formulations that are confusing or incomprehensible or additional footnotes that create ambiguity are contained in the contracts.
It is extremely important to note that loan agreements should only be concluded when the purchase agreement has been signed, for example for the property, as the property can be sold in the meantime. Otherwise, care should be taken to terminate the contract within the withdrawal period.
What happens if compensation has already been paid?
If the no-purchase compensation has already been paid, it does not mean that borrowers have lost their money. If the contract was concluded after June 10, 2010, and if you were wrongly informed when the contract was concluded, the non-acceptance compensation can still be claimed back today, provided that such a so-called enrichment claim has not yet expired.
For contracts from March 21, 2016, a change in the law came into force, according to which a prepayment penalty can only be requested if the borrower has been correctly informed about the term of the contract, the right of termination and the calculation of the prepayment penalty. However, this regulation is unlikely to apply to the non-acceptance fee.
However, the “prepayment joker” only applies to contracts from March 21, 2016 if the right of withdrawal, which is only valid for 1 year and 14 days, has expired. The legal basis for the “prepayment joker” is § 502 BGB. Even in the case of insufficient information on the calculation of the early repayment penalty, the entitlement to the non-acceptance fee does not apply. In addition, failure to take special repayment rights into account can result in the calculation of the early repayment penalty being incorrect (BGH judgment, AZ: XI ZR 388/14).
If your bank demands a non-acceptance fee or has already received it from you, you can contact Mr. Fürstenow for legal advice and support.
The legal tip was created by the employee of the FÜRSTENOW law firm, Ms. Dastan.
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