Partial loan: lucrative idea or trap? What is a partial loan? What is its purpose?
Jam planning to lend some of my savings to some property developer friends to maximise their return. They've offered to do me a favour by signing a "part loan", but I have no idea what that entails. Can you give me some tips?
D., Chêne-Bourg
Partial loans are a popular financial tool in the property sector. It allows the lender to share in the financial results of the project, whether profits or losses. Unlike a traditional loan, where the borrower repays the capital with fixed interest, a part-loan is like a financial partnership in which the lender shares both the risks and the profits.
Partial loans are not expressly defined in the Swiss Code of Obligations (CO) and offer considerable flexibility in their contractual structure. The rules on consumer loan contracts in art. 312 et seq. of the Swiss Code of Obligations apply if the creditor's participation only includes the payment of interest or a defined portion of the profit. On the other hand, if the parties agree to combine their efforts or resources to achieve a common goal, for better or for worse, the rules governing simple partnerships in art. 530 et seq. of the Swiss Code of Obligations come into play.
This type of loan is suited to the construction industry, which often involves risks relating to costs, site delays and changes in market prices. It enables developers to raise funds while limiting their traditional indebtedness.
The main advantage of the part-loan is that it aligns the interests of the parties, encouraging them to work closely together. It offers a higher return to the lender, but involves greater risks.
The capital is generally repaid first when the project starts to generate revenue; however, if the promotion fails, it may be partially or totally lost. The drafting of the contract is therefore crucial to avoid disputes over the distribution of profits or losses. It is essential to include clauses on contingency management (delays, additional costs).
Care must also be taken not to create a simple partnership unintentionally, which would give rise to additional liabilities, even though the Federal Court has ruled that the mere fact of providing for a share in losses is not in itself decisive in concluding that such a form of legal partnership exists.
So be vigilant and get help with this rewarding adventure so you don't needlessly jeopardise your savings!
