Usury

Usury means the offer of a performance at a significantly inflated consideration by exploiting a weakness situation of a contractor. Causes may be at the expense of a contractor, for example, in an emergency or in an asymmetric distribution of information. On usury civil and criminal penalties may be attached. In one built on private autonomy private law system, the usury thus the exception of government price control dar.

History and etymology

Etymologically, "usury " as much as income, especially richer income ( cf. proliferating green stuff ), and was therefore originally a positive connotation. With the borrowing of money or in kind ( here especially food or seed grain of the meaning) so were interest rates meant that were of the church (but some in the Jewish and Islamic teachings ) rated for various reasons negative: morally, because it meant to exploit the predicament of his neighbor; philosophically and theologically, because it meant the barren to be money and the time over which only God had to come to work for them; and economically - socially, because it meant ruin for those who were no longer masters of their debt. On the basis of some older individuals rules the Church, therefore, since the 12th century issued a general prohibition of interest and calls anyone who converted it, as usurers. Colloquially usurers are also referred to as cut-throat.

Legal

Germany

Civil law

In Germany Usury is regulated in § 138 paragraph 2 BGB. Vain, therefore, is a two-sided transaction,

It is a rechtshindernde objection, the transaction must be rolled back after enrichment law. Void is also the rem fulfillment business, because the law does not mention only the promise but also the grant. However, the performance of business of the usurer himself remains in effect. (see wording " ... or can grant ").

The narrow legal limits of usury are thus bridged that with rampant legal transactions similar instead § 138 para 1 BGB ( moral ) engages with the same legal consequence.

Requirements

So usury is present and the transaction is ineffective, objective and subjective elements must be present.

On objective side performance and reward in a must be " clearly disproportionate " to each other. Whether this condition is satisfied, a comprehensive assessment of the individual case can be seen. Such a mismatch is but most often when the value of the consideration exceeds the performance doubled. It must be based on the market value at closing of the transaction.

But must addition there are a special motivation of Bewuchernden, namely the " yields " as a conscious exploitation of the given bad situation of Bewucherten; it is necessary willful intent. A predicament is when the victim of profiteering entering into this business appears as the lesser evil. (Example: To avoid the impending foreclosure of his house, someone takes from a private individual on a loan, which carries an interest rate of 20 percent per month). Ignorance is a lack of food or business experience. (Example: An immigrant can Be prepared to pay for a little studio apartment € 2,000 per month because he is not familiar with the prices. ). A lack of judgment is when someone in a large extent lack the ability to be guided rechtsgeschäftlichem actions of rational motives or to assess the equivalence ratio of the mutual benefits properly. (Example: A person low intelligence a clearly disadvantageous for them complicated insurance contract is closed. ) Under considerable weakness of will is meant a reduced resistance (for example:. Dependent disease, such as alcoholism)

Criminal

Usury is provided for certain cases in Germany also punishable. § 291 of the Criminal Code provides for the offense of usury fine or imprisonment up to three years ago, in particularly serious cases imprisonment from six months to ten years. Usury is a criminal offense.

Switzerland

According to Article 21 OR may withdraw from a contract a party within one year, which includes an apparent mismatch between performance and reward. However, this is only possible if the other party has the contract brought about in addition to reveal imbalance by exploiting the plight of inexperience or recklessness of others.

Article 157 of the Criminal Code provides exactly this behavior also punishable. The law threatens with a fine or imprisonment for a term of five years, if the usurious overreaching was practiced commercially, even with up to ten years.

Usury is regulated by the Federal Law on Consumer Credit (SR 221.214.1 ) related to consumer loans or leases separately. In the associated Regulation ( SR 221.214.11 ), the Federal Council has fixed the maximum annual interest rate to 15%.