• Rechtssachenbeschreibung
    • Nationale Kennung: I ZR 241/97
    • Mitgliedstaat: Deutschland
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 27/01/2000
    • Gericht: BGH
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Deutschland Deutsch
  • Artikel der Richtlinie
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1.
  • Leitsatz
    1. Eine klauselartig formulierte Einverständniserklärung eines Verbrauchers gegenüber einer Bank, persönlich und telefonisch durch die Bank in weiteren Geldangelegenheiten beraten zu werden, stellt eine unangemessene Benachteiligung i.S. des § 9 Abs. 1 AGBG (jetzt: § 307 BGB = Art. 3 Klausel-Richtlinie 93/13) dar und ist somit unwirksam.
  • Sachverhalt
    The applicant is a registered association. According to its charter, its tasks include serving the interests of consumers by means of advice and explanation. The respondent is a co-operative bank. It also acts as a broker selling insurance policies for the insurance group R. In autumn 1994 a customer of the respondent signed two applications to open savings accounts, whose preformulated text stated under no. 3: "The account holder/depositor agrees/does not agreee to personal and telephone advice in financial matters from the bank“. In both applications the box preceding the word „agrees“ was crossed. An employee of the respondent telephoned the customer in November 1995 and arranged an appointment "concerning a tax saving matter“. During the appointment he offered her the conclusion of a capital life assurance policy with the R Lebensversicherung AG. The claimant applied for an injunction prohibiting the respondent from making unsolicited telephone calls to ultimate consumers outside of a continuing business relationship in insurance matters without the customers’ agreement, in order to arrange appointments in which insurance policies will be offered, whereby agreement of the person with whom telephone contact is made is not given by their signing of an application to open a savings account with the respondent which contains a clause to the effect that the account holder agrees to personal and telephone advice in financial matters by the bank.
    The Landgericht (district court) dismissed the application. The Berufungsgericht (appellate court) gave judgment in the terms of the application. The respondent’s Revision (appeal to the Bundesgerichtshof (BGH) – Federal Supreme Court) was dismissed.
  • Rechtsfrage
  • Entscheidung

    The BGH stated that the Berufungsgericht correctly assumed that making telephone contact in the private sphere for marketing purposes is generally contrary to good morals of competition and is only permissible in exceptional circumstances with the express or implied consent of the person with whom telephone contact is made. A presumed agreement of the person with whom telephone contact is made can justify telephone marketing in the business sphere, but not in the private sphere. Accordingly, it is generally contrary to good competition to call the owner of a telephone connection in his private sphere without his prior express or implied permission, in order to arrange an appointment with the aim of concluding an insurance policy.
    Furthermore, there was no valid consent by the customer to the call by the employee of the respondent. The declaration of consent contained in the savings account applications is to be treated as a standard contract term according to § 1 (1) AGBG (now § 305 (1) BGB) upon which the provisions of the AGBG would be applied. A decisive factor for this classification is that in respect of the declaration to be given by customers, the user enjoys the freedom of form just as in the case of preformulation of a contractual text, and that the customer only has an influence over whether or not he wishes to make the declaration and not over its content.
    The BGH further argued that it was immaterial whether the term “financial matters” also encompassed the conclusion of a capital life assurance policy. The clause is in any event void as an incommensurate disadvantage according to § 9 AGBG. According to § 8 AGBG (now § 307 (3) BGB), the clause is to be assessed according to the standard of § 9 AGBG (now § 307 (1) and (2) BGB), as it deviates from the statutory rule of § 1 UWG (Gesetz gegen den unlauteren Wettbewerb – Act Against Unfair Competition) as it then applied (now: § 3 UWG 2004) as developed by case law, according to which telephone marketing to private persons is generally impermissible. In balancing the competing interests, the interests of the addressee not to be disturbed in his private sphere, and that of the bank to submit contractual proposals to its customers out of economic interest, the former outweighs the latter. The clause is void according to § 9 AGBG (now 307 (1) BGB, as the addressee is incommensurately disadvantaged.
    Furthermore the BGH is of the view that the assessment of the telephone marketing at issue as contrary to good competition does not conflict with the Distance Selling Directive 97/7/EC. Firstly, the directive contains only a minimum standard of regulation, which in principle allows the Member States to afford consumers a greater level of protection (Art. 14 Distance Selling Directive). Also, the directive does not apply to financial services according to its Art. 3 (1), 1st indent, which also include insurance contracts according to Annex II, 2nd indent.
    Thus the BGH gave judgment that the claimant has a right to the injunction sought against the respondent according to §§ 1, 13 UWG as it then applied (now §§ 3, 8 UWG).

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