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What is a loan?
You hear it again and again in normal usage, but what is really behind a loan? Which forms exist and how can I enter into one?
Loans exist in different variations and can be used for different purposes. In general, a loan can be defined as follows:
The loan agreement is legally standardized in Section 488 of the German Civil Code (BGB). It is a contract under the law of obligations between two persons and comes about between an agreement of the two contracting parties. Accordingly, a loan agreement has the legal character of a Consensual agreement.
Accordingly, a loan is a contract iIn the sense of the law of obligations in which the lender assigns money or a thing to the borrower for a limited period of time or leaves it for use.
Lender? A lender is the person or company who leaves the amount of money or the thing free of charge. This amount can then earn interest accordingly.
Borrower? A borrower is the person or company who receives the monetary or material amount and is obliged to repay it after a period of time.
1. Obligations and special features
The basic obligations of the lender and borrower are also regulated in the BGB. It is part of the lender's obligation to make the loan amount available to the borrower in full.
The borrower undertakes to pay back the amount left. The lender usually receives interest for the loan. However, the interest rate is not mandatory. It can be negotiated freely between the contracting parties to a certain extent. If interest is agreed, the interest may not exceed a generally customary level. If the required interest is significantly excessive, it is Usury:
A legal transaction through which someone, exploiting the predicament or inexperience of another, promises or allows pecuniary advantages to be promised or granted to himself or a third party for a service which is noticeably disproportionate to the service A usurious contract is void (§ 138 II BGB). There is no fixed limit in loan agreements that could be used to say: 20 percent interest are high, if not immoral, but everything that goes above is usury.
So it stands not completely free how high you set the interest. You should pay attention to the individual cases and adjust the interest rate according to the financial situation of the parties.
1.1. Differentiation loan and credit
The terms credit and loan are used interchangeably in common language. To a large extent, the meaning actually overlaps, however, there are certain differences:
The term credit is only in the transfer of money for one short term funding applicable. As loan the transfer of a thing (loan in kind, §§ 607-609 BGB) and the transfer of ownership of money (money loan, §§ 488-498 BGB) for denotes a medium to long-term period. For example, this is the case with real estate financing. Loans, on the other hand, are granted for shorter-term financing and have a significantly shorter term.
At the Loans in kind the borrower is obliged to do the agreed To pay a fee and to reimburse the item in the same way, quality and quantity (§ 607 I BGB). The legal regulations on money loans do not apply (§ 607 II BGB). The goods are returned either when due in accordance with an agreement or after termination (Section 608 BGB). The loan fee must be paid at the latest upon repayment. In-kind loans are of little practical importance. The in-kind loan is rarely used in practice and is therefore of little importance in everyday life. However, within the generic term of the money loan there are still certain groupings:
1.1.1. Repayment Loans
The amortization loan is also known as an installment loan. With this form of loan, a fixed amount that remains the same over the agreed term is repaid by the borrower to the lender. In addition, there are interest payments, which become lower towards the end of the term due to the decreasing residual debt amount.
1.1.2. Maturity loans
The maturity loan is also known as a bullet loan or a fixed loan. Only interest is paid on the loaned amount over the entire term. The loan is repaid in one sum at the end of the term. This type of repayment is known as bullet repayment.
1.1.3. Annuity loan
The repayment of an annuity loan is made with constant installments over the entire term (often annual loans, which are paid off within one year, i.e. 12 months. The installments are made up of a repayment and an interest component. The interest portion is high at the beginning of the repayment and the repayment portion is low. The ratio changes over the entire term, the interest component is lower and the repayment component is higher.
Many "commercial" loans are also associated with collateral, here collateral is called the following:
In practice, the lender, usually the bank, also requires security. This can be a security agreement, assignment of claims, mortgage, land charge or a guarantee.
Since loans also often pose a risk and the liquidity or solvency the borrower cannot be guaranteed, collateral take care of itthat the lender in the event of insolvency does not go away empty-handed. Collateral is not a must, but should be taken into account as an additional guarantee when entering into loan agreements.
Frequent Loan collateral are in particular:
- Assignment of property by way of security (such as the assignment of vehicles by way of security)
- Assignment of Claims
- the pledging of securities or land charges (mortgage, land charge, security land charge).
Typical Loan collateral of third Security providers are (in addition to the types listed):
- the surety, guarantee or joint and several liability
The contract under the law of obligations, which forms the legal basis for the real hedging transactions, is the security agreement and not the loan agreement.
1.2. What is a shareholder loan?
Shareholder loan are loans from a shareholder to the company in which he holds an interest. A special form are shareholder loans that are granted in the group between the parent company and subsidiary or shareholder. In terms of tax law, the arm's length principle must be observedwho expects loan conditions from the parties involved, as they would be concluded between mutually independent contracting parties. The one with the other agreed transfer prices must correspond to market prices or market interest rates. In terms of commercial and corporate law, the following applies that shareholder loans in the corporate crisis are to be classified as subordinate insolvency claims (Section 39, Paragraph 1, No. 5 of the Insolvency Code).
2. Risk of taxation on private loans?
Certain problems with private loans should be considered: private loans to spouses, children or grandchildren are usually unproblematic, because the legislature grants high tax exemptions of 200,000 euros to 500,000 euros for gift tax. But even with personal loans to others Relatives such as grandparents, parents or siblings as well as non-relatives should be cautious. That is where the personal lies Exemption only at 20,000 euros - for all gifts within ten years.
The tax office uses a fictitious interest rate of 5.5 percent per year, which should actually have been agreed. If the interest burden that arises on a loan using this interest rate within ten years, If the exemption exceeds 20,000 euros, tax offices can levy gift tax on donations from the lender to the borrower.
The lost interest income would be calculated and given gift tax. For the The tax office can ask both the recipient and the giver to pay the tax.
2.1. What are the ways out?
The tax authorities regularly assume a gift for private loans with an interest rate of up to 3 percent. Lenders should be in family circles To be on the safe side, agree on a higher, realistic interest rate. In this way, later problems with taxation can be avoided.
In summary, the following can be stated: Loans are a reciprocal contract with mutual obligations. The lender undertakes to provide the sum of money or an item, the borrower to "repay" the amount owed or to return an equivalent with additional interest. In contrast to the commonly used credit, loans are usually long-term and often have very long repayment periods. As a rule, the interest rates are correspondingly high and collateral can be agreed. Loans are often set for a short period of time and have comparatively low interest amounts.
loan can especially be arranged privately, Loans are not an exclusivity of banking. Private individuals can agree on legally binding and effective loan agreements with interest rates just as banks can do. This is especially important for corporate finance, home buying or studying. However, the tax risk should be considered here, especially if a loan is agreed within the family.
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