Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: 17 U 91/07
    • Mitgliedstaat: Deutschland
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 29/11/2007
    • Gericht: Oberlandesgericht
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Deutschland Deutsch
  • Artikel der Richtlinie
    Unfair Contract Terms Directive, Article 3, 2.
  • Leitsatz
    Die Hinweise "Änderungen und Irrtümer vorbehalten. Abbildungen ähnlich" in einem Reklameprospekt stellen keine Allgemeinen Geschäftsbedingungen dar.
  • Sachverhalt
    The plaintiff is the umbrella organisation of all consumer centres of the Bundesländer and other consumer organisations. The defendant offers telecommunications services. To that purpose, she distributes a catalogue informing about her products, including their prices and conditions. The plaintiff has contested a passage on page 39 of the catalogue dating from September 2005, which in the footnotes inter alia states:

    “The offers may be subject to modifications and errors. Depictions similar to goods offered”

    This notice is printed on nearly every double page of the catalogue.
    The plaintiff has without avail asked the defendant to issue a declaration to cease and desist the use of the contested passage with a penalty clause. To back his legal opinion that the cited passage is to be qualified as a prefabricated standard term, the plaintiff pointed to the following (undisputed) facts: The attention of the consumer C was drawn to the products and services offered by the defendant due to the catalogue. He ordered the tariff “[…]”, which had been described in the catalogue as including a traffic volume of 100 megabytes. Upon his inquiry before conclusion of the contract, it was confirmed to C that the specifications in the catalogue were correct with respect to the included volume. After the tariff had been booked, it turned out that the tariff was in fact only offered with an included volume of 30 megabytes. After an having received his according reprimand, the defendant told C in a letter dating from 19 May 2005:

    “We regret our error but have to point out that it was clearly stated in the footnote that the offer was subject to modifications and errors were possible.”

    The plaintiff is of the opinion that the mentioned footnote in the catalogue is a prefabricated standard term which unreasonably disadvantages the consumer. The content of the catalogue was fit to act as the subject matter of a contract. By using the contested clause, the defendant qualified the specifications given in the catalogue, thus precluding a claim the customer was originally entitled to under the contract. This clause constituted an infringement of §§ 308 no. 4, 309 no. 8, 307 BGB. The claim was dismissed in the first instance.
  • Rechtsfrage
  • Entscheidung

    The Higher Regional Court Hamm has dismissed the plaintiff’s appeal. The plaintiff was not entitled to injunctive relief prohibiting the defendant to use the contested passage in the catalogue on the grounds of § 1 UKlaG (Unterlassungsklagengesetz - Injunctions Act). § 1 UKlaG required that the contested passage constituted a prefabricated standard term, which was not the case. The definition in § 305(1) BGB requires the passage in question to be a contract term, that is, a declaration of the user for the purpose of modification of the contract’s content. The declaration’s wording has to create the impression for its recipient that it is meant to modify the content of a contractual transaction. Even declarations made by the user to define the modalities of the contract (so-called “conclusion of contract clauses”) or to create precontractual obligations are “contract terms” in the terms of § 305(1) BGB. In principle, even notices in advertising leaflets or price tags can be standard business terms, if they – viewed from the recipient’s perspective – serve the purpose to modify the content of a contractual or precontractual transaction. The decisive element to establish whether this is the case or not is the interpretation of the declaration according to §§ 133, 157 BGB.

    It has to be borne in mind that the declaration in question here was contained in the defendant’s 56 page catalogue which contains an overview over the defendant’s whole product range. The Regional Court has already pointed out correctly that such a catalogue does not contain any binding offers but constitutes advertisement meant to attract customers. The Federal Court of Justice has dealt with a similar case under the aspect of unfair competition in an earlier decision (NJW 1997, 1780). The case was about an advertising leaflet for furniture which contained the notice “The offer may be subject to errors”. The Federal Court of Justice has pointed out that this notice was not to be contested with respect to the law of unfair competition because errors could not reasonably be excluded during the whole process of formulation and printing of the leaflet and that a supplier was to be entitled to point that out. From the perspective of a potential customer the advertisement was directed at, such a clause did not serve the purpose to preclude or reduce any rights of the buyer due to a defect. This ratio decidendi does not only apply to the law of unfair competition, but generally to the average consumer’s interpretation of such a notice.

    Catalogues as the one in dispute here are usually designed for a longer period of time. Accordingly, it is customary and not uncommon for the offered products to change in the course of this period. It cannot be guaranteed that the goods or services solicited will still be available on the same conditions after some time has passed. This is especially the case on the communications and IT market, which is subject to extremely rapid change and thus leads to the modification of product ranges in no time at all. The notice pointing out the reservation of changes in the product and the depiction being only similar to the product solicited reflects the advertisement’s tentativeness. Under application of an interpretation which is in touch with reality the notice does not appear to the rational customer as regulating a contract’s content but solely as a remark underlining the advertising and non-binding nature of the leaflet.

    Moreover, it cannot be deduced from § 1 UKlaG (Unterlassungsklagengesetz – Cease and Desist Order Act) that the notion of “standard term” used in this provision had a wider comprehension, because § 1 UKlaG does not define but only refers to this term. Contrary to the plaintiff’s opinion, the contra profarentem rule of § 305c(2) BGB does not apply here. This is because § 305c(2) BGB does not decide if a clause is a standard term or not but presupposes the existence of a standard term. Apart from that, it is a rule of doubt which only applies if the interpretation of the standard term does not lead to a clear result. This is not the case here. § 310(3) no. 3 BGB does not change this assessment. This provision concerns the test of reasonableness of contents of existing standard terms but does not qualify the concomitant circumstances of the conclusion of a contract as standard terms. The same applies to § 434(1)(3) BGB: The mere fact that public statements on specific characteristics of the sold goods made by the seller can be decisive for the determination of the quality the buyer may expect under § 434(1) no. 2 BGB does not justify the conclusion that the reservation of future changes to the offer in a catalogue would appear as the potential content of a contract. The buyer can only invoke the binding nature of statements made in a catalogue with respect to the usual quality of the goods sold, if the statements have not been legitimately corrected before. The notice points out this constellation.

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