Arrangement Fee Agreement
The Bundesgerichtshof also stressed that no other views could be expressed in the light of Article 310 of the BGB, which stipulates that the Tribunal must take into account the usual practices (14) and customs (15) of trade. Because a processing tax is also levied in consumer credit contracts, it is not common when it is inherent in trade. The Tribunal also challenged the existence of a commercial custom under Section 346 of the Code of Commerce and found that such a custom would only exist if there was a mutual understanding that such a levy should be collected, even if it was not documented in the loan agreement. Since it is common practice for a processing fee to be levied and that, as a general rule, only the amount and payment mechanism are negotiated, the relevant clauses in the loan contracts (which provide for the collection of the loan fee) are considered by the courts to be general terms and conditions, even if the amount of the royalty is heavily negotiated. Application of terms and conditions to commercial loan agreements Pre-formed contractual terms submitted to another party. This includes using market practices for lenders, standard form loan contracts or clauses such as standard credit market association documentation or internal models. The German jurisprudence even states that these standard concepts do not necessarily have to be written. If these standard terms are to be used at least three times, they are considered general terms, unless they have been negotiated individually. Another option would be to structure the royalty in a manner classified as „primary price” for certain services provided by the lender under a loan agreement. The obligation to pay the tax would be included in a separate agreement (for example. B in a mandate letter outlining the lender`s obligations – that is, the services it provides to the borrower) and the fee charged.
Therefore, the provision of these services and the corresponding payment of the levy would be the main obligations of the parties in the mandate letter and would not be subject to the control of the German courts as a general terms of sale. However, the mandate letter should be drafted to ensure that the services for which the processing or intermediation tax is levied go beyond the lender`s „usual services.” Otherwise, the risk that this could be considered a circumvention of the terms and conditions of sale would be too high. Bank fees related to the duration of the loan contract are not affected by the decisions discussed by the Bundesgerichtshof.