1. Introduction
Loan collateral plays a central role in the capital market and the real economy, as it offers the lender protection against the risk of default by the borrower.
A loan security is a right or asset that serves as a guarantee for the repayment of a loan.
A frequently discussed problem in this context is the question of whether and to what extent the statute of limitations of the underlying claim also influences the usability of the loan security.
This problem arises particularly when the claim for which the security was provided has expired.
The key question is whether the loan security can continue to be exploited even though the claim it was intended to secure is no longer enforceable.
This article is intended to provide an answer to this question.
2) Explanation and definition: Loan claim and loan security
A loan claim arises when a lender (often a bank) provides a borrower with a sum of money that must later be repaid, often with interest.
To minimize the risk of loan default, lenders often require collateral. This loan collateral can come in various forms, such as liens, mortgages or guarantees.
The purpose of this security is to grant the lender a right of access to certain assets of the borrower or third parties if the borrower does not meet his payment obligations.
3) Usability of the loan security if the claim is time-barred
The statute of limitations on a claim means that the creditor can no longer enforce his claim in court.
However, according to Section 216 of the German Civil Code (BGB), the right to utilize security for a claim remains valid even after the statute of limitations expires. This means that the lender still has the right to obtain satisfaction from the security, even if he can no longer sue for the claim due to the statute of limitations.
In the case of a surety, there is a special feature: According to Section 768 of the German Civil Code (BGB), the guarantor can refuse to provide payment as soon as the main claim has expired, unless there is a case under Section 216 of the German Civil Code (BGB). This means that the statute of limitations on the main claim generally also affects the guarantee, unless the guarantee was designed as an independent guarantee for the liability.
4) Conclusion
In summary, it can be said that the statute of limitations on a loan claim does not automatically mean that the associated loan security cannot be used.
According to § 216 BGB, the right to exploit the security remains. This also applies to guarantees, although special regulations such as those in Section 768 of the German Civil Code (BGB) must be observed.
These regulations ensure that lenders do not completely lose their security even if claims are time-barred, which is an essential aspect for the functionality of the credit system.
This article does not represent specific and individual legal advice, but rather only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from an expert lawyer.
I would be happy to assist you as a lawyer and specialist lawyer for a legal assessment and assessment of your case and to accompany and support you with financial transactions or the assertion of liability claims and compensation for damages from financial transactions and investments as well as with banking law issues regarding loan collateral and loan agreements. Please feel free to contact me by phone or write to me.
I advise nationwide on site or via Zoom as a specialist lawyer in the legal areas of corporate law, tax law, insolvency law and banking and capital markets law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden and Saarbrücken , Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Münster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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