Case law

  • Case Details
    • National ID: I ZR 55/00
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 04/07/2002
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 4
  • Headnote
    1. A notice of withdrawal rights according to § 355 (2) BGB (Bürgerliches Gesetzbuch – German Civil Code) may not in principle contain any information other than as prescribed by law.
    2. In exceptional circumstances a notice of withdrawal rights according to § 355 (2) BGB may contain supplementary information which clarifies the content of the notice and does not diverge from it.
  • Facts
    The respondent carries out painting and roofing works. On 2.10.1997 one of its employees approached a homeowner in his home without appointment and offered him a roof renovation at a fixed price. The homeowner then signed a notification of the right of withdrawal with a black border on one of the respondent’s pre-printed order forms with the following wording: “The order can be cancelled in writing to the firm within one week … . The punctual sending of the notice of withdrawal suffices the time limit. The time limit begins once this contract has been handed to the customer, however, not before the customer has signalled his willingness to conclude the contract”. The applicant Federal Association of Consumer Centres and Consumer Associations submits that the notification of the right of withdrawal breaches § 2 (1) HWiG (Haustürwiderrufsgesetz – Doorstep Selling Withdrawal Act) as it then applied; that the clause contains an impermissible supplement to the notification as the statute does not provide for such and is furthermore apt to confuse the customer. The applicant sought an injunctive order against the respondent to prohibit use of the aforementioned formulation. The respondent replied, that its notice of withdrawal is unambiguous and also comprehensible to the consumer and has only a clarificatory function.
    The LG (Landgericht – district court) granted the injunction in the terms of the application. The BerGer (Berufungsgericht – court to which appeals on points of fact and law are submitted) overturned the decision, reasoning that the part of the withdrawal notice at issue did not breach § 2 (1), 3rd sentence HWiG as it then applied; the reference is only of a supplementary nature and not incomprehensible to the consumer. The applicant’s Revision (appeal on points of law) was successful and led to reinstatement of the ruling of the LG.
  • Legal issue
    The BGH (Bundesgerichtshof – Federal SupremeCourt) is of the view that the BerGer wrongly assumed that the order form used by the respondent corresponds to the legal requirements, which apply to the notification of withdrawal rights to the customer in doorstep sales. The use of such an order form is an anti competitive practice within the meaning of § 1 UWG (Gesetz gegen den unlauteren Wettbewerb – Act against unfair competition).
    As the injunctive application is aimed at future conduct, the BGH regards the relevant law as that applicable at the time of the present decision. Thus, the provisions of § 312 (1), 1st sentence, 312 (2) BGB in conjunction with §§ 355 (1), 2nd sentence, 355 (2), 1st and 2nd sentences, 357 (1), 3rd sentence BGB, in force since 1.1.2002 on the basis of the Act to modernise the law of obligations of 26.11.2001 apply. According to the wording of these provisions, it cannot clearly be stated whether or not it is permissible to give the notice of the withdrawal right prior to the consumer’s declaration aimed at to concluding the contract.
    Thus, the BGH regards as decisive the fact that the purpose pursued by granting the consumer a statutory right of withdrawal is not achieved by the formulation used by the respondent. In its opinion, § 355 (2), 1st sentence makes clear that a notification of the right of withdrawal cannot in principle contain any explanations other than those provided for by law, in order that the consumer is clearly informed of his right of withdrawal. Exceptions however, are explanations, which clarify the content of the notification and do not diverge from it.
    In the view of the BGH, the notification of withdrawal used by the respondent does not meet these conditions, as it suggests, incorrectly, that the time limit for withdrawal may not begin to run when the contractual document is handed to the customer, but rather when the - chronologically subsequent - declaration aimed at concluding the contract is made by the consumer. The add-on thereby provokes an incorrect understanding and is confusing to the consumer. In the best case for the consumer, the addendum is superfluous and thereby apt to compromise his understanding.
    For the cases in which the consumer places the order following an initial period of consideration and therefore provisionally signs the withdrawal notice, the clause is likewise not appropriate, as a notice of withdrawal prior to conclusion of the contract does not correspond to the statutory requirements. The requirement to clearly inform the consumer of his withdrawal rights would only be achieved, if the notification thereof related to a specific contractual declaration of the consumer. If the consumer provisionally signs the notification, the risk arises, that the consumer has already forgotten it by the time he gives his contractual declaration.
    The BGH stated that a European law interpretation would also lead to the same outcome. Also according to Art. 4, 3rd sentence lit. a) of the Doorstep Selling Directive 85/577/EEC, the notification of the right of withdrawal must in principle occur art the same time as the contract is concluded.
  • Decision

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