Judgment of the Higher Regional Court
The present case concerns the liability or joint liability of a spouse in the event of a bad loan (1). The court ruled that the woman was not an equal borrower.
The background is the wife’s gross financial demands. Since the bank took advantage of this, the loan agreement is on the verge of immorality.
The court also found that a spouse is generally not to be seen as a borrower if he or she has no expressed interest in the loan. However, there is basically joint liability.
But this, in turn, is excluded due to immorality if the wife’s loan results in excessive financial demands.
New loan for debt restructuring and girlfriend in Philippines
The family owned a car that was financed through a loan. The remaining debt of the car loan was repaid with a new, much larger loan. The husband who had taken out the new loan took his wife to the bank, where she also signed.
On the one hand, the loan was to be used to repay the first loan, the use of the much larger part was not precisely defined. However, it turned out that the husband was supporting his girlfriend in the Philippines.
At the time of signing the contract, the wife spoke very little German and had no significant income or assets. Eventually, the loan became bad, meaning that the loan installments were no longer properly paid.
Bank requests the wife to repay the remaining debt
After the loan agreement was terminated, the bank insisted on the wife repaying the loan amount. Initially, the competent district court in Constance dismissed the bank’s action, arguing that the spouse was not to be regarded as the debtor of the loan agreement.
Rather, the loan was taken up by the spouse. In addition, the contract on which liability is based is legally immoral. The bank had appealed.
Court supports the wife, loan contract immoral
The court in Constance had determined that there was no legal claim to the wife repaying the loan. The judgment was confirmed by the Higher Regional Court in Karlsruhe.
The reason given by the court: within the meaning of section 488 (1) sentence 2 BGB, there was no obligation to repay the loan for the spouse (2). The contract that was concluded with the spouse is also considered immoral. Because it should be criticized precisely the circumstances under which this came about.
In particular, the fact that the wife is struggling with language deficits underpins the immorality. The contract is therefore considered ineffective within the meaning of Section 138 (1) BGB (3).
The court also stated that a signature to the joint liability of the wife out of emotional connection would have been the case, because she had no interest in the new loan. At the same time, this fact was exploited by the lender in an offensive manner, which borders on immorality. As a result, there was no joint liability.
The judges noted that the larger loan amount should be used for the girlfriend in the Philippines. Therefore, the court found that the spouse was not an equal borrower.