Current Jurisprudence (2021)

Interpretation of the Railroad Network Usage Conditions 2013 or 2014: Claims for Compensation for Financial Losses

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

BGH, Judgment of 3 February 2021 – XII ZR 29/20

Scope of a Jurisdiction Agreement 

The substantive scope of a jurisdiction agreement is to 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 broader agreement, it is generally governed by the law applicable to the contract, provided that Art. 25 Brussels Ia Regulation contains no standards and guidelines.

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

Clause for Flat-Rate 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 flat-rate damage clause used extensively by public clients. The claim for damages of a cartel victim who has purchased a product at a cartel-induced inflated price can, as a rule, effectively be quantified to an amount not exceeding 5% of the invoice amount through an appropriate clause in the purchase contract.

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

Lease Agreement for Commercial Premises: Significance of an Entire Agreement Clause 

Entire agreement clauses ("There are no oral ancillary agreements", "No oral ancillary agreements have been made", "Oral ancillary agreements do not exist") pertain to confirming that the written contract contains all the agreements between the parties concerning the contract subject matter, whether included as general terms in the contract or negotiated individually. It is established in the case law of the Federal Court of Justice that such clauses only restate the presumptions of completeness and correctness inherent in the written contract document, but leave the contract partner who wants to rely on a deviating oral agreement free to adduce evidence to the contrary.

An entire agreement clause – as in the present case – cannot be construed as an irrefutable presumption of the non-existence of oral agreements and also does not imply that the parties' agreements from the stage of preliminary negotiations of the contract should no longer apply. As general terms, a form clause aimed at this would in any case be ineffective in light of §§ 305 b, 307, 309 No. 12 BGB.

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

Ineffectiveness of a Fault-Independent Flat-Rate Damages / Time-Barred Transactions

A fault-independent liability can only be effectively agreed upon in general terms and conditions in exceptional cases, particularly when justified by the greater interests of the user or offset by granting legal advantages. 

The claim for compensation for delay damages due to non-compliance with the delivery deadline cannot be fault-independently configured through general terms and conditions, as § 286 Para. 4 BGB is among the key principles of the statutory default regulation.

A general term related to a fixed commercial purchase can be effective if significant reasons, recognizable to the burdened party during contract negotiations, speak in favor of such a contractual arrangement or such clauses are customary in the industry, as is the case with furniture delivery contracts.

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

Use of a Price Clause and Parts of a Lockout Clause in the General Terms and Conditions of a Mobile Phone Company

The formulation "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 (Rn. 23 ff.).

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

Insurer's Obligation to Inform about the Ineffectiveness of a Clause in its General Insurance Conditions 

The obligation of an insurer to inform the affected policyholders about the ineffectiveness of a clause in its general insurance conditions can be based on § 8 Para. 1 UWG, as a clause's violation of § 307 BGB also constitutes a violation of a market conduct rule within the meaning of § 3a UWG.

Note: Also worth reading are the explanations of the so-called blue-pencil test (Rn. 64).

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

Assumed Agreement of the Customer to Changes in the GTC is Ineffective

The XI. Civil Senate, responsible for banking law, has decided that clauses in a bank’s general terms and conditions that fictitiously assume the customer’s consent to amendments of the general terms and conditions and special conditions without substantive limitation are ineffective.

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

Ineffective Access Clause in Architect Contract

The clause used in sample contracts in favor of architects, "The Contractor is entitled – even after termination of this contract – to enter the building or structure in coordination with the client to make photographic or other recordings," is ineffective according to § 307 Para. 1 Sentence 1 BGB because it unreasonably disadvantages the architect's contractual partner contrary to the principles of good faith when objectively interpreted.

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

Effective Cancellation Fee in Accommodation Contract (B2B)

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

In assessing appropriateness, the entire contract content must be considered. It is permissible to compensate for advantages and disadvantages in related provisions that stand in a reciprocal relationship. 

The starting point to determine if the cancellation fee is unreasonably high is the amount that would otherwise be owed. In the case at hand, it should be noted that, by law, the plaintiff had no right to unilaterally and unreasonably withdraw from the concluded contract. Without the contractually agreed right to cancel the contract, the plaintiff would otherwise remain obligated under the principle of pacta sunt servanda to pay the full purchase price even if she does not use the service. By contractually granting the plaintiff a cancellation right not provided by law, the defendant improves the plaintiff’s legal position while worsening its own. This applies even when the plaintiff is obliged to pay a cancellation fee of 90% from a certain point. The plaintiff’s legal position remains improved compared to the statutory norms. There is thus no unreasonable disadvantage.

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

Processing Fee for Calculating a Non-Acceptance Indemnity

The flat-rate processing fee in the general terms and conditions of a savings bank for calculating a non-acceptance indemnity withstands content control according to §§ 307, 309 No. 5 BGB.

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

Ineffective Clause for Increasing Compensation in a Management Contract

A clause in a management contract providing for a flat annual increase of the compensation by 4% unreasonably disadvantages a community of apartment owners, including consumers, and is therefore ineffective.

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