The question of securing loans plays a special role for the banks, which manage large parts of the national wealth in trust.
Bevor die Bank einen Overdraft gewährt, muss sie gewissenhaft prüfen, ob der Kreditnehmer nach seinen persönlichen Eigenschaften und den materiellen Verhältnissen seines Unternehmens (Ertragskraft des Unternehmens) auch in der Lage ist, den Kredit fristgemäß zurückzuzahlen.
The pure blank loan is widespread in banking practice, but only for relatively small amounts. As a rule, the bank customer must provide additional collateral.
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The guarantee (§ 765 BGB), which an acquaintance or relative of the borrower takes over by means of a written declaration, entitles the obligee to either claim against the surety immediately if the principal debtor does not meet his obligations (absolute guarantee) or only after the foreclosure was unsuccessfully pursued against the debtor (deficiency guarantee).
The banks generally require the absolute guarantee. The assignment of claims (assignment) grants the lender, z. B. the bank, the right to collect one or more claims from their customers. A distinction is made between the open assignment and the silent assignment.
In the case of an open assignment, the borrower (also called assignor) notifies the customer (debtor) concerned of the fact of the assignment; they are then only allowed to pay the amount owed to the new creditor (assignee, e.g. a bank).
In the case of the silent assignment, however, the debtors do not learn anything about the assignment. There is therefore a risk that the assignor (= borrower) will assign the claim a second time.
Shell and global assignment
In order to secure a current loan, incoming claims must be replaced again and again with new ones. For this purpose, the customer undertakes in a shell contract to submit accounts receivable lists at certain time intervals, from which the assigned claims can be seen. Your total must exceed the loan amount by at least 20-30%. If the customer assigns all claims against customers of a certain group (e.g. letter AD), one speaks of a global assignment.
Pledging of movable property
The pledging of movable objects (§ 1204 BGB) takes place in such a way that goods, securities or other easily salable values are handed over to the bank as pledges. The handover of the goods themselves can also be replaced by the handover of the corresponding, previously endorsed disposition papers (loading note, warehouse receipt, bill of lading) or by “storage under lock and key”. If the debtor does not meet his payment obligation, the bank can satisfy itself from the pledge. If the debtor pays on time, the lien expires.
Transfer by way of security
The assignment by way of security comes into question as a substitute for the pledging if the debtor absolutely needs the objects in question (machines, vehicles) to continue his business operations, the bank and the borrower conclude a contract by which the borrower temporarily identifies the ownership of precisely Transfers objects to the bank, while the bank simultaneously leaves the transferred objects to him for rent, loan or lease.
Die Bank muss darauf achten, dass die übereigneten Sachen nicht schon anderweitig belastet oder unter Retention of title geliefert sind. Bei einem Konkurs ist die Bank hinsichtlich der übereigneten Gegenstände absonderungsberechtigt.