Case law

  • Case Details
    • National ID: XI ZR 242/05
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 19/09/2006
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 4
  • Headnote
    If the acquisition of a valuable apartment is financed by a loan, even under consideration of the judicature of the ECJ (cf. judgment of 25 October 2005, Crailsheimer Volksbank) the protective purpose of the instruction on the right of withdrawal under the Haustürwiderrufsgesetz (Doorstep Withdrawal Act) is not to put the borrower who has not been instructed on his right of withdrawal in a position he would be in if he had immediately revoked the loan agreement and had financed the acquisition himself by granting him a claim for damages.
  • Facts
    The plaintiffs demand the reimbursement of payments made to the defendant with respect to a loan agreement. The case is based on the following facts:

    By notarised contract of sale dating from 20 December 1996 the plaintiffs purchased the apartment they had previously rented as their private residence for a purchase price of DM 250.000. To finance the purchase price the plaintiffs on 8 February 1997 – brokered by an employee of the … home savings and loan association – directed an application for an annuity loan worth DM 190.000 at an interest rate of 6,65% p. a. (fixed until the end of February 2007) and 1% redemption. According to the information voluntarily disclosed by the plaintiff, he at that time had DM 8.750 in cash and home loan savings of about 31.000 DM at his disposal. The defendant accepted the offer on 11 February 1997 without providing an instruction on the right of withdrawal under the Haustürwiderrufsgesetz and – after provision interest and administration and estimation costs had been deduced – as agreed disbursed the remaining loan value of DM 188.459,17 to the notary of contract parties. The loan was secured by a land charge imposed on the apartment worth DM 190.000.

    On 21 June 2002 the plaintiffs revoked their loan contract declaration under the HWiG. The plaintiffs claim that they had originally wanted to finance the purchased object with a building savings loan and therefore had invited the employee of the home savings and loan association to their private residence. On this occasion the employee had surprisingly suggested to finance the purchase by a loan to be taken out from the defendant, the financing partner of the home savings and loan association and had induced them (the plaintiffs) under exploitation of the doorstep situation to conclude the loan contract in dispute.

    The Regional Court had dismissed the claim for the repayment of their interest and redemption payments amounting to EUR 41.212,87 together with interest versus the payment of the remainder of the loan (EUR 96.357,61) together with 4% interest. The plaintiffs appeal was of no success.
  • Legal issue
    The Federal Court of Justice has overruled the appellate court’s judgement and referred the case back for a new decision.

    The appellate court had incorrectly not attributed the implied doorstep situation to the defendant. The Federal Court of Justice has indeed assumed in his previously established judicature with which the appellate court complied that a loan contract cannot be revoked under the HWiG, if the broker of a financed capital investment merely has initiated the conclusion of a loan contract in a doorstep situation. Rather, the doorstep situation was only attributed to the financing bank outside the scope of § 278 BGB, if the requirements for the attribution of a fraudulent misrepresentation under § 123(2) BGB had been met. If the negotiator was to be qualified as a “third party” in the terms of this provision, his conduct in the doorstep situation was only to attributed to the bank, if it had or should have had knowledge of this behaviour upon the conclusion of the contact (cf. judgments of this senate of 12 November 2002 – XI ZR 3/01, of 15 July 2003 – XI ZR 162/00 and of 20 January 2004 – XI ZR 460/02).

    As the finding senate has pointed out in his judgment of 14 February 2006 – which had been promulgated after the appellate court’s decision (XI ZR 255/04, cf. also Federal Court of Justice, judgment of 25 April 2006 – XI ZR 193/04 and of 20 June 2006 – XI ZR 224/05; in this sense already FCJ, judgement of 12 December 2005 – II ZR 327/04), it does no longer abide by this judicature. By enacting the HWiG, the legislator has transposed the Council Directive of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (85/577/EEC) to national law. According to the binding interpretation of European Community law by the European Court of Justice in a decision made after the contested judgement of the appellate court of 25 October 2005 (Crailsheimer Volksbank) the financing bank is legally responsible for a doorstep situation, if it had objectively existed upon the conclusion of the loan agreement. Such a directive-conform interpretation is consistent with national law. Although the legislator did not intend to protect a consumer whose freedom of decision-making had been impaired by a doorstep situation more intensively than a contract party who has been induced to make a declaration of intent by deceit, this intention cannot be deduced from the wording of § 1 HWiG. It is not even an interpretation of the wording of the statutory provision, but a contribution to a discussion which has not been resolved in a statutory provision but has been handed to judicature and legal literature to be answer. Thus, an alleged doorstep situation is to be attributed to the defendant under application of strictly objective criteria.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result