Interpretation of the 2013 and 2014 Network Statement: Claims for compensation for financial losses

A comprehensive exemption in general terms and conditions, according to which the liability of the user of the clause for other damages is excluded even in the event of gross negligence (Section 309 No. 7 lit. b BGB), is ineffective not only vis-à-vis consumers, but also in business transactions between entrepreneurs due to unreasonable disadvantage to the user's contractual partner, Section 307 (1) in conjunction with (2) No. 2 BGB. Para. 2 No. 2 BGB. An indemnification in business transactions in the event of a breach of Section 309 No. 7 lit. b BGB is therefore invalid if - as would be the case here - it completely excludes liability for intent and gross negligence with regard to other damages. Such a far-reaching exclusion of liability puts the user's contractual partner at an unreasonable disadvantage, even in commercial business transactions, because it jeopardizes the purpose of the contract (Section 307 (2) no. 2 BGB). An entrepreneur, just like a consumer, may trust that his contractual partner will not cause him gross negligence or even intentional damage. For this reason, there is also a ban on comprehensive exemption from liability for gross negligence in business transactions with entrepreneurs.

BGH, judgment of 03.02.2021 - XII ZR 29/20

Scope of a jurisdiction agreement 

The material scope of a jurisdiction agreement must be determined by interpretation. The interpretation of an agreement on international jurisdiction is a matter for the national court. If it is part of a more comprehensive agreement, it is generally governed by the law applicable to the contract, insofar as Art. 25 Brussels Ia Regulation does not contain any standards or guidelines.

BGH, judgment of. 10.02.2021 - KZR 66/17

Lump-sum clause for damages caused by cartel agreements

The BGH has ruled that a contractor involved in a cartel is not unreasonably disadvantaged by a liquidated damages clause frequently used by public clients in particular, contrary to the requirements of good faith. The claim for damages of a cartel victim who has purchased a product at an inflated price due to the cartel can, in principle, be effectively lumped together with a corresponding clause in the purchase contract in the amount of an amount not exceeding 5% of the invoice total.

BGH, judgment of. 10.02.2021 - KZR 63/18

Lease agreement for business premises: significance of a completeness clause 

Completeness clauses ("No verbal ancillary agreements exist", "No verbal ancillary agreements were made", "No verbal ancillary agreements exist") - regardless of whether they are included in the contract as general terms and conditions or individually negotiated - are aimed at confirming the fact that the written contract contains all the provisions agreed between the parties with regard to the subject matter of the contract. The case law of the Federal Court of Justice has clarified that such clauses merely reflect the presumption of completeness and correctness of the written contractual document, which applies in any case, but leave it open to the contractual partner who wishes to invoke a deviating oral agreement to provide evidence to the contrary.

In contrast, a clause of completeness - as in the present case - does not give rise to an irrebuttable presumption of the non-existence of verbal agreements, nor can it be inferred that the parties' agreements from the stage of negotiations leading up to the contract are no longer valid. As general terms and conditions, a form clause with this purpose would in any case be invalid with regard to Sections 305 b, 307, 309 No. 12 BGB.

BGH, judgment of 03.03.2021 - XII ZR 92/19

Ineffectiveness of a no-fault lump sum for damages / fixed-date transaction

Strict liability can only be effectively agreed in GTCs in exceptional cases, in particular if it is justified by the higher interests of the GTC user or is offset by the granting of legal advantages. 

The claim for compensation for damage caused by delay in the event of non-compliance with the
delivery deadline cannot be made independent of fault by the General Terms and Conditions
either, as Section 286 (4) BGB is also one of the
essential basic ideas of the statutory default regulation.

General terms and conditions relating to a sale for delivery by a fixed date may be valid if there are weighty reasons for such a contractual arrangement that are recognizable to the party affected during the contract negotiations or if such clauses are customary in the industry, which is the case with furniture supply contracts.

OLG Bamberg, judgment of 05.03.2021 - 3 U 68/20

Use of a price clause and parts of a blocking clause in the general terms and conditions of a mobile communications company

The wording"without prejudice to other statutory provisions" is effective. It does not violate the transparency requirement of Section 307 (1) sentence 2 BGB. 

Note: The court's comments on the transparency requirement are particularly interesting (para. 23 et seq.).

BGH, judgment of. 11.03.2021 - III ZR 96/20

Obligation of an insurer to inform about the invalidity of a clause in its general terms and conditions of insurance 

The obligation of an insurer to inform the affected policyholders about the invalidity of a clause in its general terms and conditions of insurance can be based on Section 8 (1) UWG, because the violation of a clause against Section 307 BGB also constitutes a violation of a market conduct regulation within the meaning of Section 3a UWG.

Note: The comments on the so-called blue-pencil test are also worth reading (para. 64).

BGH, judgment of. 31.03.2021 - IV ZR 221/19

Fictitious consent of the customer to changes to the GTC is invalid

The XI Civil Senate, which is responsible for banking law, has ruled that clauses in a bank's general terms and conditions are invalid if they feign the customer's consent to changes to the general terms and conditions and special conditions without restricting their content.

BGH, judgment of. 27.04.2021 - XI ZR 26/20

Ineffective access clause in architects' contract

The clause "The contractor is entitled - even after termination of this contract - to enter the building or the building structure in consultation with the client in order to take photographs or other recordings" used in model contracts in favor of architects. is invalid pursuant to Section 307 (1) sentence 1 BGB because, when interpreted objectively as required, it unreasonably disadvantages the architect's contractual partner contrary to the requirements of good faith.

BGH, judgment of. 29.04.2021 - I ZR 193/20

Effective cancellation fee in the accommodation contract (B2B)

A clause that links a cancellation from a certain point in time with the payment of a fee of 90% of the booking price does not constitute an unreasonable disadvantage to the plaintiff within the meaning of Section 307 BGB, even taking into account the values of Section 308 No. 7 and Section 309 No. 5 BGB, which are not directly applicable pursuant to Section 310 BGB. 

The entire content of the contract must be included in the appropriateness test. Compensation of advantages and disadvantages is permissible in the case of factually related provisions that are interrelated. 

The starting point for determining whether the cancellation fee is unreasonably high is the amount that would otherwise be owed. In the case in dispute, it should be noted that the plaintiff was not entitled by law to unilaterally and without reason withdraw from the concluded contract. Without the contractually agreed entitlement to cancel the contract, the plaintiff - subject to special statutory grounds for termination - would rather remain obliged to pay the purchase price in full in accordance with the principle of pacta sunt servanda, even if it did not make use of the service. If, in this situation, the defendant contractually grants the plaintiff a right to cancel that is not provided for by law, it improves the plaintiff's legal position to the detriment of its own. This also applies if the plaintiff is obliged to pay a cancellation fee of 90% from a certain point in time. Even then, it remains the case that the legal position of the plaintiff is improved in comparison to the statutory standard situation. There is therefore no unreasonable disadvantage.

OLG Cologne, judgment of. 14.05.2021 - 1 U 9/21

Processing fee for calculation of non-acceptance compensation

The flat-rate processing fee for the calculation of a non-acceptance fee contained in the General Terms and Conditions of a savings bank is subject to content review in accordance with Sections 307, 309 No. 5 BGB.

BGH, judgment of 08.06.2021 - XI ZR 356/20

Ineffective remuneration increase clause in the administrator contract

A clause in a management contract that provides for a flat-rate annual increase in remuneration of 4% is unreasonably disadvantageous to a homeowners' association to which consumers belong and is therefore invalid.

Regional Court Frankfurt a. M., judg. v. 24.06.2021 - 2-13 S 35/20