Current Jurisprudence (2021)

Interpretation of the Railway Network Usage Conditions 2013 or 2014: Claims for Damages due to Pecuniary Loss

A comprehensive exemption in General Terms and Conditions, which excludes the clause user's liability for other damages even in the case of gross negligence (§ 309 No. 7 lit. b BGB), is ineffective not only towards consumers but also in business dealings between entrepreneurs due to the unreasonable disadvantage to the user's contractual partner, according to § 307 Para. 1 in conjunction with Para. 2 No. 2 BGB. Such exemption in business transactions is ineffective if it completely excludes liability for intent and gross negligence regarding other damages, as is the case here. Such extensive exclusion of liability unreasonably disadvantages the contractual partner of the user even in business transactions because it endangers the purpose of the contract (§ 307 Para. 2 No. 2 BGB). An entrepreneur, like a consumer, can trust that their contractual partner will not harm them with gross negligence or intent. Therefore, even in business dealings with entrepreneurs, there is a prohibition on comprehensive exemption from liability for gross negligence.

BGH, Judgment dated February 3, 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 regularly governed by the law applicable to the contract if Art. 25 of the Brussels I Regulation does not contain any criteria or provisions.

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

Lump-Sum Clause for 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 lump-sum damages clause widely used by public clients. The damages claim of a cartel victim who has purchased a product at a cartel-inducement inflated price can, in principle, be effectively lump-summed in the purchase contract to a maximum amount not exceeding 5% of the billing amount.

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

Lease Agreement for Commercial Premises: Significance of a Completeness Clause 

Completeness clauses ("No verbal agreements exist", "No verbal agreements have been made", "No verbal agreements exist") - whether included in the contract as general terms or individually negotiated - aim to confirm that the written contract contains all provisions agreed between the parties regarding the subject matter of the contract. The jurisprudence of the Federal Court has clarified that such clauses merely reflect the presumption of completeness and accuracy of the written contract document, which applies anyway, but leave the contractual partner who wants to rely on a deviating oral agreement the possibility to provide counter-evidence.

A completeness clause–as in this case– cannot provide an irrefutable presumption for the non-existence of oral agreements or otherwise imply that the agreements from the stage of contract initiation negotiations no longer claim validity. As general terms and conditions, such a formal clause aiming at this would, in view of §§ 305 b, 307, 309 No. 12 BGB, anyway be ineffective.

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

Ineffectiveness of a Non-Fault-Based Lump-Sum Compensation/Fix Transaction

A non-fault-based liability can only exceptionally be effectively agreed upon in general terms and conditions, especially if justified by higher interests of the clause user or compensated by granting legal advantages. 

The claim for compensation for delay damage in failure to comply with the delivery deadline cannot be governed without fault via General Terms and Conditions, as § 286 Para. 4 BGB also belongs to the essential basic principles of the statutory regulation of delay.

A general term condition subjecting a fixed commercial sale may be effective if significant reasons recognizable to the burdened party during contract negotiations support such contractual design, or if such clauses are customary in the industry, as seen in furniture delivery contracts.

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

Use of a Price Clause and Parts of a Block Clause in the General Terms and Conditions of a Mobile Network Provider

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: The court's statements on the transparency requirement (paras. 23 ff.) are particularly interesting.

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

Insurer's Obligation to Inform about the Invalidity of a Clause in its General Insurance Terms 

The insurer's obligation to inform affected policyholders about the invalidity of a clause in its General Insurance Terms can be based on § 8 Para. 1 UWG, because the breach of a clause against § 307 BGB also constitutes a violation of a market behavior rule within the meaning of § 3a UWG.

Note: Also worth reading are the statements on the so-called blue-pencil test (para. 64).

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

Fictitious Consent of the Customer to Changes of the General Terms and Conditions is Invalid

The XI Civil Senate responsible for banking law has ruled that clauses in a bank's general terms and conditions that fictitiously create customer consent to changes in general terms and conditions and special conditions without substantive restriction are invalid.

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

Invalid Entry Clause in Architect Contract

The clause used in standard contracts in favor of architects "The contractor is entitled – even after termination of this contract – to enter any building or structural facility in consultation with the client, to make photographic or other recordings," is, according to § 307 Para. 1 Sentence 1 BGB, invalid as it unreasonably disadvantages the architect's contractual partner contrary to the principles of good faith when objectively interpreted.

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

Valid Cancellation Fee in Accommodation Contract (B2B)

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

The appropriateness assessment must include the entire contract content. In this context, compensation of advantages and disadvantages is permissible for materially coherent regulations that are in a reciprocal relationship. 

The starting point for assessing whether the cancellation fee is unreasonably high is the amount that would otherwise be owed. In the dispute, it should be noted that the plaintiff generally had no legal entitlement to unilaterally and without reason withdraw from the contract. Without the contractually agreed right to cancel the contract, the plaintiff would remain obliged to pay the full purchase price, subject to specific statutory resolution conditions, according to the principle pacta sunt servanda, even if she does not make use of the service. If the defendant contractually grants the plaintiff a cancellation right not provided for by law in this situation, she improves the plaintiff's legal position and worsens her own. This also applies insofar as the plaintiff is obliged to pay a cancellation fee of 90% from a certain point in time. The plaintiff's legal position remains improved compared to the statutory standard situation. Hence, there is no unreasonable disadvantage.

OLG Cologne, Judgment dated May 14, 2021 – 1 U 9/21

Handling Fee for Calculation of Non-Performance Compensation

The lump-sum handling fee for calculating non-performance compensation contained in a savings bank's general terms withstands content control according to §§ 307, 309 No. 5 BGB.

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

Invalid Compensation Increase Clause in Manager Contract

A clause in a manager contract providing for a flat annual compensation increase of 4% unreasonably disadvantages a condominium owner association comprising consumers and is therefore invalid.

LG Frankfurt am Main, Judgment dated June 24, 2021 – 2-13 S 35/20