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Cancellation information in related vehicle purchase contracts correctly

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A woman purchased a vehicle. In order to be able to finance the purchase price, she concluded a loan agreement. The loan agreement documents contained cancellation information identifying the contracts as related contracts. In the event of missing payments, it was said that the statutory interest rate would be charged for late payment interest, which was five percentage points above the base interest rate for the year. The contract did not specify a specific interest rate. The loan agreement also contained provisions for calculating an early repayment penalty should the loan be repaid early.

The bank’s general loan conditions were part of the loan agreement. It said: “If the borrower revokes his contractual declaration within the revocation period, he does not have to pay any interest for the period between disbursement and repayment of the loan.” It was also stated that the borrower took part in the dispute resolution process of the consumer arbitration board “Ombudsman of Private Banks”.

After making interest and repayment payments, the borrower declared the revocation of her declaration of intent to conclude the loan agreement. She considers the cancellation information to be incorrect. Due to the effective revocation of the loan agreement, she is no longer bound to the vehicle purchase agreement. Around two years after the purchase, the woman sold the vehicle and paid off the loan early.

Legal fiction takes effect

She sued the bank – taking into account the sales proceeds – for repayment of the interest and repayments made. She had no success with this. The BGH dismissed the lawsuit (judgment of February 27, 2024 – XI ZR 258/22). The woman did not exercise her right of withdrawal in a timely manner. The revocation information is correct by virtue of legal fiction. The required mandatory information was also included, so that the two-week cancellation period started with the conclusion of the contract.

The bank duly informed about the right of withdrawal. You can rely on the legality fiction stipulated in Article 247 § 6 Para. 2 Sentence 3 EGBGB. The ECJ ruling of December 21, 2023 does not contradict the application of the fiction. An interpretation of the national regulations that complies with the directive is not possible given the clear wording of the law. In its loan conditions, the bank waived the interest amount to be paid per day after the cancellation information. However, this does not only affect the correctness of the revocation information, but also the legality fiction. Because it only benefits the consumer. The information is still clear and does not mislead consumers.

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Starting of the cancellation period is not prevented

The bank duly provided the information required by Article 247 Section 6 Paragraph 1 Sentence 1 No. 1 EGBGB in conjunction with Section 3 Paragraph 1 No. 2 EGBGB about the type of loan. In the case of a general consumer loan agreement within the scope of the Consumer Credit Directive, it must be clearly and comprehensibly stated that it is a linked, fixed-term loan agreement. The time limit of the loan agreement can be seen from the fact that the contract expressly states a term. The fact that this is a loan agreement linked to the purchase agreement is clear and understandable from the cancellation information.

The information about the default interest rate and the manner in which it may be adjusted is incomplete because the bank did not inform the customer of the specific percentage of the default interest applicable at the time the contract was concluded. However, this does not prevent the cancellation period from starting. A normally informed, reasonably attentive and understanding consumer in the borrower’s position would have concluded the loan agreement if the information had been properly communicated to him, according to the BGH with regard to the ECJ ruling of December 21, 2023.

The information regarding the calculation of the early repayment penalty is incorrect. The clause used by the bank deviates from legal regulations to the detriment of the consumer. However, according to the German legislator’s regulatory concept, this only leads to the exclusion of the right to early repayment compensation. The 14-day cancellation period still starts. The BGH also maintains this with regard to the ECJ ruling of December 21, 2023. Here the borrower can still easily calculate the prepayment penalty to be paid based on the bank’s information. The fact that the bank’s information does not pass a clause check due to its implementation in national law is irrelevant. If interpreted in accordance with the guidelines, this does not prevent the 14-day cancellation period from starting.

Finally, the information required under Article 247 § 7 Para. 1 No. 4 EGBGB about the consumer’s access to an out-of-court complaint and redress procedure and, if applicable, about the requirements for this access was also properly provided. The bank stated in the loan conditions that the complaint could be sent in text form and provided its postal address, fax number and email address for this purpose. According to the BGH, she did not have to specify any other formal requirements. In particular, it did not have to provide information about the costs associated with the arbitration procedure. The arbitration procedure with the ombudsman of the private banks does not cost the consumer anything.

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on BGH, judgment of February 27, 2024 – XI ZR 258/22

Editorial team beck-aktuell, bw, February 27, 2024.

Related Links

From the beck-online database

ECJ, On the right of withdrawal in kilometer leasing contracts, BeckRS 2023, 36805

ECJ submission on the abusive revocation of a consumer credit agreement, report by the beck-aktuell editorial team from February 22, 2022, becklink 2022325

BGH, Loan revocation: ECJ submission on the abusive exercise of the right of revocation, VuR 2022, 197

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