Case law

  • Case Details
    • National ID: XI ZR 243/05
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 10/07/2007
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 1, 1.
  • Headnote
    1. On the causality of a doorstep situation influencing contract negotiations between a consumer and a relative.
    2. The bank financing the acquisition of a share in a fund is - due to superior knowledge - only legally obliged to inform the purchaser about a hidden fee which had not been mentioned in the fund prospectus without been asked to, if the hidden fee is concurrently causative for the purchase price being nearly two times as high as the value of the share, so that the bank has to assume that the seller was damnified in manner contrary to public policy (cf. judgement of the senate, BGHZ 168, 1, 21 no. 47).
  • Facts
    The plaintiff claims the reimbursement of all payments made to the defendant bank on the basis of a certain loan agreement and applies for the judicial declaration that the defendant is not entitled to any claims against him under the agreement. His nephew, who had been working as a an investment broker for an investment agency at the time, visited the plaintiff in his private residence in the autumn of 1994 and offered him the possibility to join a closed real property fund. In the following, the plaintiff signed an agreement to acquire two shares in the fund for a price of DM 31.716 per share. According to the fund prospectus, this price was composed of DM 28.161 DM for the acquisition of the property, DM 1.839 for marketing costs, app. DM 650 for land registration, DM 364 for notarisation and DM 702 for the fees of the fiduciary.

    To finance the acquisition the plaintiff on 28 October / 9 December 1994 concluded an annuity loan contract with the defendant, taking out a loan of DM 63.432. As agreed, the loan value was used to acquire the shares in the fund. On 4 July 2002 the plaintiff revoked his declarations of intent leading to the conclusion of the loan agreement and the acquisition of the shares in the fund under reference to the HWiG (Haustürwiderrufsgesetz – Doorstep Withdrawal Act). In addition, he claimed damages due to incorrect information about the fund.

    By his claim he had demanded the reimbursement of all interest and redemption payments made with respect to the loan contract and the retained discount totalling to EUR 29.149 together with interest and has applied for the judicial declaration that the defendant was not entitled to any claims against him under the loan agreement. Assuming an infringement of §§ 4, 6(2) VerbrKrG (Consumer Credit Act) [old version], the Regional Court has ordered the defendant to repay EUR 9.147,30 EUR together with 4% interest from 10 June 2003, but for the rest has dismissed the claim. The plaintiff’s appeal was – except for the judicial declaration that he was not obliged under the loan contract to pay more than 4% interest as of Mai 2003 – of no success.
  • Legal issue
    The Federal Court of Justice has overruled the appellate court’s judgment and referred the case back for a new decision.
    The appellate court’s judgement was legally flawed in an essential point.
    No fault, however, could be found with the appellate court’s decision to deny the causality of the doorstep situation for the subsequent conclusion of the contract.
    A right of withdrawal under § 1(1) no. 1 HWiG required that the customer had been induced to make his contract declaration by verbal negotiations taking place at his private residence or at his place of work. In this context, it was not necessary that the special circumstances of this first contact were the decisive factor for the conclusion of the contract. Rather, it was sufficient if he had been put into a position in which his freedom of decision-making with respect to enter or not to enter into the contract had been impaired by this particular situation. Whether the doorstep situation was at least concurrently causative to the conclusion of the contract is a matter of the factual assessment of the particular case, which can only be reviewed to a limited extent in this instance of appeal on a point of law.
    Under application of these principles the appellate court has come to the correct conclusion that the conclusion of the loan agreement had not been affected by the surprise effect typical for doorstep transactions. In the appeal hearing, the plaintiff had personally stated that he would not have acquired the shares in the fund, if the broker had not been his nephew. Thus, no fault could be found with the appellate court’s decision to assume that the lone cause for the conclusion of the loan contract was the fact the that the investment broker was the plaintiff’s nephew and that the location where the negotiations were taking place had no influence on his decision.
    This judicial assessment of facts is maintainable, does not violate the rules of logic and is not based on a violation of the rules of procedure.
    However, insofar as the appellate court has denied a claim for damages based on the breach of a precontractual duty of information with respect to false statements about the distribution costs in the fund prospectus, which alone had been asserted by way of appeal on a point of law, this assessment does not pass the review by this senate.
    According to the FCJ’s established judicature, a bank financing tax saving schemes such as building owner, building developer and purchaser schemes or the acquisition of shares in a real estate fund is only obliged to inform about the risks of the financed investment if special requirements are met. As a general rule, the bank can assume that the customer either himself has the skills or experience necessary for this kind of business or has sought the advice of experts. Duties of information and counsel with respect to the financed transaction can only arise from special circumstances of the particular case. For example, this is would be the case if the bank has superior knowledge of certain risks of the investment and has to be aware of this superior knowledge. The bank has superior knowledge, if it positively knows that the borrower has been deceived with respect to the financed investment by his business partner or by the investment prospectus. Measured by these principles, the appellate court’s judgment is flawed.
  • Decision

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