Why does the solvent bank handle the settlement in the linked contract, and not the insolvent retailer?
If the motorhome dealer is insolvent, any claims for rescission and damages against them will be unsuccessful. However, if the vehicle was financed, there is a second party liable: the bank. In the case of a linked contract, the bank handles the reversal of the transaction and must accept any objections arising from the purchase agreement. Rogert & Ulbrich reviews your financing agreement for mandatory information and enforces your rights.
Why financing is the decisive lever for insolvent retailers
The situation under insolvency law is sobering. Anyone who withdraws from a purchase agreement has a right to a refund from the seller. If the seller is insolvent, this becomes a simple insolvency claim under Section 38 of the German Insolvency Code (InsO), which must be registered in the schedule of claims and is ultimately satisfied according to the distribution quota. For a motorhome in the mid-five-figure range, this often means a loss that can be a severe financial blow to the affected party.
This is precisely where the linked contract comes into play. If the purchase was financed through a bank and the purchase and loan agreements form an economic unit, the legal consequences are no longer directed solely against the retailer. The law shifts the responsibility for handling the case to the lender. Thus, the defendant changes from an insolvent company to a credit institution that is solvent and subject to banking supervision.
Two instruments exist side by side and should not be confused. Revoking the loan agreement terminates the obligation to both contracts and leads to a complete reversal of the transaction. The right to object to the contract remains in effect but gives you the right to refuse further payments. Which instrument is appropriate depends on the condition of the vehicle, the outstanding debt, and the quality of the contract documents.
Therefore, first present the complete financing agreement with all attachments, even if you consider it unremarkable. Further information on banking law claims can be found in our section. banking law, The other recovery options after a provider's insolvency are discussed in the article. Camping provider insolvent compiled.
The linked contract according to § 358 BGB: prerequisites and the central legal consequence
A linked contract exists under Section 358 Paragraph 3 of the German Civil Code (BGB) if the loan serves wholly or partly to finance the purchase contract and both contracts form an economic unit. Such a unit is to be assumed in particular if the entrepreneur himself finances the consideration or if the lender makes use of the entrepreneur's cooperation in the preparation or conclusion of the loan agreement.
With traditional dealer financing in the motorhome trade, this requirement is almost always met. Typical indicators:
- Mediation by the dealerThe loan application was filled out at the car dealership; the salesperson accepted the documents and forwarded them.
- Bank formsApplication forms from the manufacturer's bank or a partner bank, which were available in the sales area, were used.
- Direct payoutThe loan amount was not paid to you, but directly to the merchant.
- earmarkedThe loan agreement names the specific vehicle with its vehicle identification number or refers to the purchase agreement.
The central legal consequence is set out in Section 358 Paragraph 4 of the German Civil Code (BGB). If the loan has already been disbursed to the business, the lender assumes the rights and obligations of the business under the linked contract with respect to the legal consequences of the cancellation vis-à-vis the consumer. In other words: The bank handles the transaction on behalf of the retailer. It refunds what is due and receives what is to be returned. Whether the retailer still exists is irrelevant for this process.
Therefore, first check whether the conditions for a single economic entity are met. If this is not the case because you took out an independent loan from your bank, the regulations do not apply and the processes remain separate.
Objection under Section 359 of the German Civil Code (BGB): Refuse payments instead of waiting for the quota.
The right to object is the instrument for cases in which the right of withdrawal no longer exists or in which you do not wish to fully unwind the contract. According to Section 359 of the German Civil Code (BGB), you can refuse repayment of the loan to the extent that objections arising from the related contract would entitle you to refuse performance to the business.
In practical terms, this means that a claim against the insolvent dealer that is economically worthless is valid against the bank. You then no longer have to make payments for a vehicle whose defects can no longer be repaired.
Two legal restrictions must be observed:
- de minimis thresholdThe right to raise objections does not apply if the financed fee is less than two hundred euros. This is irrelevant for motorhomes.
- Priority of subsequent performanceIf the objection is based on a defect, you can only refuse payment if the subsequent performance has failed. This is precisely the likely scenario with an insolvent retailer who can neither repair nor replace the goods. This condition should be documented and explained to the bank.
The order is important. Do not stop making payments until you have submitted a formal objection to the bank and provided justification. An unjustified cessation of payments will lead to default, negative entries with credit bureaus, and in the worst case, termination of the loan with immediate effect for the remaining balance.
Explain your objection in writing, including your reasons, before suspending the next payment. Our website provides information on revocation and termination of financing agreements. Revocation and termination of leasing.
The right of withdrawal: why the deadline is often still running
Consumer loan agreements include a right of withdrawal pursuant to Section 495 of the German Civil Code (BGB) in conjunction with Section 355 of the BGB. The withdrawal period is fourteen days, but it does not begin automatically upon conclusion of the contract. Section 356b of the BGB is decisive: the period only begins when you have been provided with the contract document intended for you or a copy thereof. If this document does not contain all the mandatory information pursuant to Section 492 Paragraph 2 of the BGB, the period only begins once this information has been provided and is then one month.
The crucial difference compared to purchasing goods lies in what the law does not regulate. In distance selling, the right of withdrawal expires no later than twelve months and fourteen days after the conclusion of the contract. The law governing general consumer loans does not provide for a comparable absolute maximum period. If a mandatory disclosure is missing or incorrect, the right of withdrawal may therefore still be considered years after the contract was concluded.
The following should be considered: If the bank uses the legally prescribed template for the cancellation information accurately, the information is considered compliant. Furthermore, case law regarding individual mandatory disclosures is evolving, both at the European and national levels. Courts have differing opinions on whether a specific disclosure is sufficient. Therefore, a reliable assessment is only possible based on the specific contract documents and the current state of case law.
Have your contract reviewed instead of relying on a general statement of success. Whether a cancellation is valid depends on the wording of your documents.
Mandatory information: where financing agreements show weaknesses in practice
The information that a consumer loan agreement must contain is stipulated in Section 492 Paragraph 2 of the German Civil Code (BGB) in conjunction with Article 247 of the Introductory Act to the German Civil Code (EGBGB). The list is extensive, and not every error results in a continued right of withdrawal. In legal practice, the same points are regularly examined in detail.
- Default interest rateThe applicable default interest rate at the time the contract was concluded and the manner in which any adjustments may be made must be specified. General references without specific details are a typical source of error.
- prepayment penaltyThe contract must include details on the method for calculating the claim for prepayment compensation. General statements are generally considered insufficient for this purpose.
- Right of terminationThe following information must be provided: the procedure to be followed when terminating the contract and a reference to the borrower's right of termination.
- Complaint procedureThe contract must indicate access to an out-of-court complaint and redress procedure and specify the conditions for access.
- Cancellation informationIt must provide accurate information about the start, duration and legal consequences of the revocation, including the daily interest amount payable.
- Payout conditionsThe following information must be provided: Payment terms, effective annual interest rate and total amount.
In addition, there are related supplementary products. Residual debt insurance, extended warranties, and breakdown cover are often financed along with the loan. These can themselves be linked contracts, meaning they must be included in the reversal of the loan agreement. The question of whether their costs were to be factored into the effective annual interest rate is also relevant for the audit.
Therefore, please also submit the documents for residual debt insurance and additional products. You can find further articles about vehicles in our section. Automotive.
The reversal of the transaction: what you will receive back and what you have to hand over
After cancellation, the services received must be returned in accordance with Section 355 Paragraph 3 of the German Civil Code (BGB). In the case of a linked contract, this reversal is handled through the bank if the loan has already been disbursed to the dealer. You return the vehicle, and the bank refunds the payments made. Both parties are obligated to fulfill these obligations simultaneously.
The invoice should include:
- Installments paid: All installments paid on the loan, including the interest components contained therein.
- down payment: Any down payment made to the dealer must be taken into account in the context of the reversal of the linked contract and is therefore also directed against the bank.
- Additional productsPremiums for co-financed residual debt insurance and protection letters, insofar as these are to be classified as linked contracts.
- Vehicle releaseReturn of the motorhome with keys and documents, usually in exchange for payment.
The point of contention in practice is the compensation for use. In the case of a cancellation, the principle applies that a consumer only owes compensation for a loss in value if this is due to unnecessary handling of the goods and if they were properly informed about their right of cancellation and the obligation to compensate for loss in value. This information is frequently lacking in defective contracts. The extent to which this applies and the amount of mileage to be taken into account are judged differently by the courts and must be assessed on a case-by-case basis.
Before you cancel, calculate the final cost and have the issue of compensation for usage assessed beforehand. We have information on our experiences with return and billing disputes on our website. Lease and rental car return We have compiled this information; we will address general questions about the vehicle in the section on general questions about the vehicle. traffic law.
Rogert & Ulbrich – Your lawyers for revocation and objections against the bank
Rogert & Ulbrich represents consumers nationwide in their dealings with banks and financial institutions. Lawyers Dr. Marco Rogert and Tobias Ulbrich and their team have years of experience working at the intersection of banking law, sales law, and insolvency law, and are familiar with the contracts of manufacturers and partner banks as well as the arguments used to reject cancellations.
We review your financing agreement for mandatory disclosures, clarify whether a linked contract exists, and choose the instrument best suited to your situation, whether it be a cancellation or raising objections. We explain your rights vis-à-vis the bank, handle all correspondence, and calculate the reversal of the transaction, including any compensation for use. If an out-of-court settlement cannot be reached, we will also represent you in court proceedings.
Is your motorhome financed and the dealer is insolvent or unresponsive? Contact us for a free, no-obligation consultation and have your contract reviewed.
