Can I revoke my guarantee declaration?
Can I revoke the guarantee I have given to a bank or savings bank?
The Federal Court of Justice (BGH) has ruled: Bank guarantees are not contracts for financial services. The federal judges argue that the surety does not receive anything in return. Consumers therefore have no right of withdrawal.
Bundesgerichtshof, Judgment of 09/22/2020
File number: XI ZR 219/19
The verdict is controversial. Consumer lawyer Achim Tiffe comments on test.de as follows:
“The fact that consumers are not adequately protected in guarantees is a very old problem and actually untenable. As a consumer, the guarantor is denied consumer rights because he is so weak that he signs the guarantee without receiving anything in return. The vulnerable consumer, whose protection is a very important concern of the European Union, is thus protected, for example, as a borrower. The even more vulnerable consumer who, as a surety, signs a guarantee for relatives or friends for the sake of relatives or friends, is not protected. “
It is also controversial whether the Federal Court of Justice was even entitled to judge without the involvement of the European Court of Justice (ECJ). As far as the interpretation of EU directives is concerned, the EU court in Luxembourg alone has jurisdiction. The only exception: It is very clear how the EU rules are to be interpreted. Assume this against the German federal judges in their judgment. At least one federal judge from the XI. However, the civil senate of the Federal Court of Justice takes a different view. Christian Grüneberg refers in the most important commentary to the German Civil Code (Palandt) on the consumer-friendly judgment of the ECJ on the guarantee in the Dietzinger case.
European Court of Justice, Judgment of March 17, 1998
File number: C-45/96
Lawyer Achim Tiffe criticizes: „Ultimately, this is reflected in the behavior of the XI responsible for banking law. Senate of the BGH, repeatedly rejecting submissions to the ECJ, also reflected the general relapse into national thinking – and a refusal to implement EU law. Overall, this is a very worrying development, and we don’t know where it will end. “
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