OGH: Claim for debt interest in case of pandemic deferral unlawful

Feb 25, 2022 Benn-Ibler Rechtsanwälte

With the COVID-19 Judicial Accompanying Act (COVID-19-Justiz-Begleitgesetz, COVID-19-JuBG), the legislator has created a deferral regulation for consumer loans in order to prevent borrowers from becoming over-indebted in the form of a double burden due to two loan installments to be paid. However, how does this relate to the debt interest (“Sollzinsen”) claim of the lending bank?

In the case in question, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the offsetting of debt interest in a statutory deferral period on the part of the bank. The plaintiff, the Association for Consumer Information (Verein für Konsumenteninformation, VKI), demanded that the bank should refrain from such a practice and that the judgement be published. According to the plaintiff, the COVID-19-JuBG does not provide for an explicit regulation on the charging of debt interest during the deferral period for consumer loans that were concluded before March 15, 2020 and thus fall under the standard. The defendant bank, in turn, argued that, by definition, this deferral was only a subsequent change in the due date and that the charging of debt interest was permissible.

While the lower courts dismissed the claims, the OGH ruled as follows:

Section 2 para 1 COVID-19-JuBG provides for a deferral of ten months upon the occurrence of the due date. However, the contracting parties may make deviating agreements. Sec. 2 para 1 of the COVID-19-JuBG provides for a genuine deferral that postpones the contractual due date. This results in a change of the repayment schedule. In any case, only consumer loans and not business loans fall within the scope of application of the provision. If the legislator had intended to burden the borrowers in the event that a regulation deviating from Sec. 2 COVID-19-JuBG did not come into being, it would have been recorded in some form. The OGH also refuted the defendant bank's argument that this would not give the borrower any incentive to make a deviating agreement by stating that there would again be no incentive for the bank to accommodate the consumer.

The total amount to be paid may not be increased due to the deferral. The claim was upheld.

3 Ob 189/21x (22.12.2021)