/** Translation for 'read more' button in blog**/

Loan fees in home savings contracts

10. May 2023

In its court ruling of November 8, 2016, XI ZR 552/15, the Federal Court of Justice (Bundes­gerichtshof — BGH) also declares loan fees in home savings contracts to be unlawful; limitation issue

Important note: the the Federal Court of Justice (Bundes­gerichtshof — BGH) ruling presented here is from 2016, and the case law contained therein may be outdated. Also, claims resulting from corre­sponding facts may be statute-barred.

In its ruling of 08.11.2016 (XI ZR 552/15), the Federal Court of Justice (Bundes­gerichtshof — BGH) has already declared a clause in a form regulating a loan fee for the disbursement of a loan in a home savings contract with a consumer to be invalid.


Facts of the court ruling: Loan fees in home savings contracts with consumers impermissible

According to the facts under­lying the BGH’s ruling, the defendant building society there had used the following clause in its pre-formulated general terms and condi­tions for building savings contracts for a large number of contracts:

Loan fee

Upon commencement of the loan disbursement, a loan fee in the amount of 2% of the bauspar loan...shall become due and payable and shall be added to the “Bauspar” loan (loan debt).”

BGH decides: Loan fees charged by “Bausparkassen” to consumers are invalid

In its afore­men­tioned ruling, the Federal Court of Justice (Bundes­gerichtshof — BGH) decided that loan fees charged to consumers in the event of loan disbursement via the general terms and condi­tions for “Bauspar” contracts are invalid.


Opinion of the court: loan fees in pre-formulated home savings contracts are inadmis­sible vis-à-vis consumers

The pre-formulated clause for a large number of contracts in the general condi­tions for home savings contracts of a home savings bank vis-à-vis consumers is subject to content review pursuant to Section 307 (3) sentence 1 BGB. The Federal Court of Justice ruled that this clause consti­tutes a control­lable ancillary price agreement because it does not price any specific contractual consid­er­ation. The BGH ruled that the fee rather serves to compensate for admin­is­trative expenses incurred for the activ­ities of the building society in connection with the building society loans: The loan fee is “not to be regarded as remuner­ation for another, legally independent, separately remunerable service” of the building society.

With regard to the loan fee, the clause thus deviates from the essential basic idea of the statutory provision, which unrea­sonably disad­van­tages the borrower and does not stand up to a content review. The guiding principle for loan agree­ments is that, pursuant to Section 488 (1) sentence 2 of the German Civil Code (Bürger­liches Geset­zbuch — BGB), interest is dependent on the term and is not designed to be independent of the term. The loan fee serves “to cover expenses for admin­is­trative activ­ities related to building society loans” of the building society, whereby “costs are passed on to its customers that are incurred for activ­ities that are predom­i­nantly performed by the (building society) in its own interest.”

The BGH further clarifies that the clause regarding the loan fee “is to be measured against the statutory model of the loan agreement and not against a model for “Bauspar” loan agree­ments charac­terized by speci­ficity” and deter­mines that even a collective overall interest of the “Bauspar” community does not justify the levying of term-independent loan fees in the context of “Bauspar” loans.

What does the ruling mean for home savings customers: Loan fees in pre-formulated home savings contracts are inadmis­sible vis-à-vis consumers

For “Bausparer”, which locked as consumers a building savings contract, to which the building savings loan was assigned and which received this also, can reclaim the inadmis­sibly computed loan fee in principle from its building society in the way of the unjus­tified enrichment, so attorney Fürstenow.


 Limitation problem: Limitation with expiration of 31.12.2019?

Also a requirement on repayment of the loan fee from unjust enrichment is subject to the regular expiration of 3 year. As a result, the statute of limita­tions could expire at the end of 2019 if the daily 10-year maximum statute of limita­tions has not yet occurred by then.

In the case of processing fees in consumer loans, which the BGH also declared unlawful in 2014, the BGH ruled that the statute of limita­tions for repayment claims arising from processing fees began to run at the end of 2011, as the start of the statute of limita­tions depends on knowledge or grossly negligent lack of knowledge. “However, the knowledge of the creditor required by Section 199 (1) No. 2 of the German Civil Code is only present if, on the basis of the facts known to him, he can bring an action against the debtor which, if fully assessed, has a reasonable prospect of success,” according to the BGH in its ruling of October 28, 2014, XI ZR 17/14, p. 20. The reason for the start of this limitation period was the publi­cation of numerous decisions of the higher regional courts in 2011 that had already declared processing fees to be inadmissible.

This BGH case law could certainly also be used to calculate the statute of limita­tions for this matter. The vast majority of courts of instance have deemed the loan fee permis­sible. It was not until 2016 that the BGH gave direction to the case law with the cited decision, so that the statute of limita­tions would come into effect at the end of 2019. To consider remains in any case a maximum period of ten years, which is calcu­lated day exactly, explains attorney Fürstenow.

Example: the building society contract was locked to 30.09.2008, then because of the 10-year maximum period at the latest with expiration of 29.09.2018 a requirement would become time-barred and not only with expiration of 31.12.2019!


Caution is therefore advisable here. Affected home loan and savings customers should have their specific case reviewed by a lawyer. Attorney Sascha C. Fürstenow will be happy to offer his legal assistance.