Current Jurisprudence (2021)

Interpretation of the Railway Network Usage Conditions 2013 or 2014: Claims for damages for pecuniary losses

A comprehensive disclaimer in general terms and conditions, according to which the clause user's liability for other damages is excluded even in the case of gross fault (§ 309 No. 7 lit. b BGB), is invalid not only against consumers but also in business transactions between entrepreneurs due to unreasonable disadvantage to the contract partner of the user, § 307 para. 1 in conjunction with para. 2 No. 2 BGB. A disclaimer in business transactions is thus invalid if it - as would be the case here - completely excludes liability for intent and gross negligence for other damages. Such a far-reaching exclusion of liability unreasonably disadvantages the contract partner of the user, even in business transactions, because it endangers the purpose of the contract (§ 307 para. 2 No. 2 BGB). An entrepreneur, just like a consumer, may trust that his contract partner will not grossly negligently or even intentionally harm him. Therefore, there is also a prohibition in business transactions with entrepreneurs against a comprehensive disclaimer of liability for gross fault.

BGH, decision of 3 February 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 the responsibility of the national court. It is governed, if part of a broader agreement, regularly by the law applicable to the contract, insofar as Art. 25 Brussels Ia Regulation does not contain any criteria and requirements.

BGH, decision of 10 February 2021 – KZR 66/17

Clause for standardization of damages due to cartel agreements

The BGH has decided that a contractor involved in a cartel is not unreasonably disadvantaged contrary to the principles of good faith by a clause for standardization of damages that is often used by public clients. The claim for damages of a cartel victim who purchased a product at a cartel-induced inflated price can therefore be standardized to an amount not exceeding 5% of the billing sum by a corresponding clause in the purchase contract.

BGH, decision of 10 February 2021 – KZR 63/18

Lease agreement for commercial premises: Importance of a completeness clause 

Completeness clauses ("There are no oral side agreements", "No oral side agreements have been made", "No oral side agreements exist") are aimed – whether included as general terms and conditions in the contract or individually negotiated - at confirming the fact that the written contract contains all agreements made between the parties regarding the subject matter of the contract. It is settled in the case law of the Federal Court of Justice that such clauses merely reflect the already existing presumption of completeness and accuracy of the written contract document, but leave the contract partner who wishes to rely on a different oral agreement the possibility to provide counter-evidence.

A completeness clause – as in the present case – cannot, however, be seen as an irrebuttable presumption for the non-existence of oral agreements and cannot otherwise be interpreted as meaning that the agreements of the parties from the stage of contract negotiations can no longer be claimed. As general terms and conditions, such a form clause aimed at this would be invalid in view of §§ 305 b, 307, 309 No. 12 BGB.

BGH, decision of 3 March 2021 – XII ZR 92/19

Invalidity of a strict liability compensation clause / Fixed transaction

Strict liability can only be effectively agreed in general terms and conditions on an exceptional basis, especially if it is justified by higher interests of the user of the terms and conditions or offset by granting legal advantages. 

The claim for compensation for delay damage due to non-compliance with the delivery deadline can also not be structured to be regardless of fault through general terms and conditions, because § 286 para. 4 BGB is one of the essential basic thoughts of the statutory delay regulation.

A general term condition that involves a fixed commercial purchase may be effective if significant reasons recognizable to the party burdened at the contract negotiations support such a contract design or if such clauses are customary in the industry, which is the case with furniture supply contracts.

OLG Bamberg, decision of 5 March 2021 – 3 U 68/20

Use of a price clause and parts of a barrier clause in the general terms and conditions of a mobile phone company

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

Note: Particularly interesting are the court's statements on the transparency requirement (paragraph 23 et seq.).

BGH, decision of 11 March 2021 – III ZR 96/20

Insurer's obligation to inform about the invalidity of a clause in its general insurance terms 

The obligation of an insurer to inform the affected policyholders about the invalidity of a clause in its general insurance terms can be based on § 8 para. 1 UWG, because the violation of a clause against § 307 BGB simultaneously represents a violation against a market conduct regulation within the meaning of § 3a UWG.

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

BGH, decision of 31 March 2021 – IV ZR 221/19

Fictitious consent of customers to changes in the general terms and conditions is ineffective

The XI. Civil Senate, responsible for banking law, has decided that clauses in a bank's general terms and conditions are ineffective if they fictitiously presume the consent of the customer to changes in the general terms and conditions and special conditions without any substantive restrictions.

BGH, decision of 27 April 2021 – XI ZR 26/20

Invalid entry clause in architect contract

The clause used in sample contracts in favor of architects "The contractor is entitled – even after the termination of this contract – to enter the building or structure in coordination with the client to make photographic or other recordings." is invalid according to § 307 para. 1 sentence 1 BGB because it unjustly disadvantages the architect's contract partner contrary to the principles of good faith under the necessary objective interpretation.

BGH, decision of 29 April 2021 – I ZR 193/20

Effective cancellation fee in 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 represent an unreasonable disadvantage to the claimant within the meaning of § 307 BGB even considering the evaluations of the non-directly applicable § 308 No. 7, § 309 No. 5 BGB.

In the appropriateness test, the entire contract content must be included. In the case of materially related regulations that are in a reciprocal relationship, a compensation of advantages and disadvantages is permissible. 

The starting point for the examination of whether the cancellation fee is unduly high is the amount that would otherwise be owed. In the event of a dispute, it must be considered that the claimant is generally not entitled to unilaterally and groundlessly resolve the concluded contract according to law. Without the contractually agreed permission to cancel the contract, the claimant would remain obliged to pay the full purchase price according to the principle of pacta sunt servanda, even if she does not claim the service. If the defendant grants the claimant a legally not provided cancellation right in this situation, she improves the claimant's legal position while worsening her own. This applies also to the extent that the claimant is obliged to pay a cancellation fee of 90% from a certain point in time. In such cases, the claimant's legal position compared to the legal standard situation is improved. There is no unreasonable disadvantage.

OLG Köln, decision of 14 May 2021 – 1 U 9/21

Processing fee for calculation of a non-acceptance compensation

The general terms and conditions of a savings bank containing the standardization of the processing fee for the calculation of a non-acceptance compensation stand the content control according to §§ 307, 309 No. 5 BGB.

BGH, decision of 8 June 2021 – XI ZR 356/20

Invalid remuneration increase clause in management contract

A clause in a management contract that provides for a flat annual increase of the remuneration by 4% unjustly disadvantages a condominium association, which includes consumers, and is therefore ineffective.

LG Frankfurt a. M., decision of 24 June 2021 – 2-13 S 35/20