Auto finance
Many car loans are flawed: the Federal Court of Justice gives way to the revocation joker
26.11.2020 | 08:01
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Private consumers who have financed the purchase of an automobile by credit or leasing can, according to two decisions of the BGH, in many cases return their vehicle to the credit institution by revoking the financing. Reason: The contracts contain formulations that the European Court of Justice (ECJ) had already designated as inadmissible. The BGH is thus bowing to the consumer-friendly case law of the ECJ.
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The BGH initially protected the banks, but is now buckling and allowing the loan agreements to be revoked. The two BGH judgments (Az. XI ZR 489/19 and XI ZR 525/19) concerned loans from the FCA Bank.
The wording criticized by the ECJ can be found in both contracts, which experts call a cascade reference:
“The period begins after the conclusion of the contract, but only after the borrower has received all mandatory information in accordance with Section 492 (2) BGB (e.g. information on the type of loan, information on the net loan amount, information on the contract period).”
BGH: If the sample text is changed, there is no protection for the bank
This formulation corresponds to the sample text that the German legislator has specified for use in credit agreements. That is why the banks are protected if they have used this sample text unchanged. However, according to analyzes by the interest group revocation, this has only happened in the rarest of cases. Instead, most banks have changed the legal model text and adapted it to their own requirements.
Please also read: Comeback for the revocation joker – ECJ overturns revocation clause in private loan agreements: Who benefits from it?
This is also the case in the two cases that the BGH has now decided. The banks had changed the sample text so far that the customer’s revocation not only includes the loan agreement, but also residual debt insurance. The problem: In the present cases, the customer had not taken out any such insurance.
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This error can also be found at numerous other banks, which makes the BGH ruling explosive. Affected are, for example, Santander Bank, Opel Bank, VW Bank, Audi Bank, BDK, Commerzbank, Auto Europa, Targo Bank and Bank 11. The BGH has now made it clear: This means that the bank is no longer subject to model protection. The customer’s revocation is still effective years after the conclusion of the contract.
Consumers should consider car loan and lease agreements carefully
The consequences are far-reaching: the customer can return the financed vehicle to the bank and get their money back. Although he has to pay compensation for the use of the vehicle, this is usually significantly less than the depreciation of a used car. This can be of particular interest in the case of diesel vehicles, which have lost massively in value. In the case of private leasing contracts, all installments paid are even repaid, as the Munich Higher Regional Court recently decided against Sixt Leasing (Az. 32 U 7119/19). The car was thus used free of charge for several years.
Consumers who have concluded a private car loan or leasing contract should check to what extent they can benefit from the current BGH rulings. Such an examination is possible with specialized lawyers, also with the interest group revocation.
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