Case law

  • Case Details
    • National ID: VIII ZR 294/03
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 14/07/2004
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1.
  • Headnote
    1. The bilateral exclusion of the ordinary right of cancellation for a certain, contractually determined period of time in a residential rental agreement is permissible. A reference to the ECJ is unnecessary, as it is in principle a matter for the domestic court to assess the unfairness of a clause.
  • Facts
    The respondents rented an apartment from the claimants by contract dated 31st October 2001. § 1 (4) of the rental contract stated inter alia the following:
    "The rental agreement can be cancelled from 31.12.02 with three months’ notice in the ordinary way. If the agreement is not cancelled then a rental agreement of unlimited duration exists following expiry of this minimum period. …”
    The date “31st December 2002” is added by hand. The respondents cancelled the rental agreement “at the earliest possibility” by letter of 23rd May 2002. By letter of 28th May 2002 the respondents communicated that according to the cancellation declared by the claimants the agreement would come to an end on 31st December 2002. From August 2002 the respondents did not pay any more rent. The claimants are of the view that they have a right to rent at least for the period until October 2002 inclusive.
  • Legal issue
    The BGH stated that it is of no significance in the present case whether the agreement is individually negotiated. Even a rule in standard contract terms excluding the ordinary right of cancellation is valid, providing it applies to both parties. Neither is there a deviation from the statutory provisions of § 397 (2) No. 1 BGB, as also the legislator assumed it to be permissible to conclude an unlimited rental agreement excluding the ordinary right of cancellation for a certain, contractually determined period of time. Nor does § 307 (2) No. 2 apply, especially as the protective purpose of § 573 c (4) BGB does not allow any limitation of the permissibility of an exclusion of the right of cancellation. As the right of cancellation is excluded for both parties, the rule is not void according to § 397 (1) BGB either.
    The BGH furthermore stated that no preliminary reference to the ECJ is necessary on the issue of how Art. 3 (1) Directive 93/3 is to be interpreted in respect of the present clause, in particular whether such a clause is to be regarded as unfair within the meaning of that Directive. The European Court of Justice decided with its judgment of 1st April 2004 that it is in principle a matter for the national court to make this assessment. The BGH therefore makes its own judgment that an incommensurate disadvantage according to Art. 3 (1) of the Directive is not present in a limited exclusion of the right of cancellation in a rental agreement form if the clause – as here – applies to both parties equally.
  • Decision

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  • Result