Case law

  • Case Details
    • National ID: Xa ZR 141/07
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 26/02/2009
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, ANNEX I, 1. Package Travel Directive, Article 5, 3. Package Travel Directive, Article 5, 4.
  • Headnote
    Article 305 paragraph 2 number 2 of the German Civil Code; Article 6 paragraph 3 of the Regulation on duties to supply information in civil law (BGB-InfoV).
    The traveller who books a trip in a travel agency is only afforded the possibility to reasonably study the standard travel terms, on which the travel organiser wishes to base the contract, if the travel organiser transfers the conditions of travel to the traveller fully before the formation of the contract.
    Articles 309 number 7, 651g paragraph 2, 651m sentence 2 of the German Civil Code.
    A clause in the general travel conditions, with which the statutory limitation period for the travellers’ claims based on insufficiencies of the travel is to be shortened, is entirely invalid because it violates the prohibition of clauses contained in article 309 number 7 (a) and (b) of the German Civil Code, if the claims for damages contained within those prohibitions of clauses are not excluded from the shortening of the limitation period.
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  • Facts
    The claimant undertook a package travel to Mauritius with his wife. After returning from his travel, the claimant asserted claims against the defendant on 18 August 2005 and brought his action on 11 August 2006 but the notice of this only reached the defendant in December 2006 because of a wrong address on the statement of claim. The claimant claims for the partial reimbursement of the purchase price and damages for uselessly applied holidays. The standard travel terms of the defendant provide for the limitation of contractual claims of the traveller after one year instead of the normal statutory period of two years. The defendant’s standard travel terms were printed in a catalogue that was available in the travel agency. The court of first instance and the court of appeal have rejected the action since the limitation period had expired. The court of appeal assumed that the claimant had been sufficiently informed of the travel conditions and had had a reasonable possibility of reading them. The relevant period of limitation, of one year, was not interrupted because the claimant had caused the late notification through his indication of the wrong address.
  • Legal issue
    The claimant’s appeal to the Federal Court of Justice was successful. Article 305 paragraph 2 number 2 of the German Civil Code requires, for the valid inclusion of standard business terms into a contract, that the user affords the client the possibility to reasonably study the content of the standard business terms. Unlike the court of appeal, the Federal Court of Justice did not consider it reasonable to study the travel conditions in the travel agency where the catalogue was available in which they were printed. Here, the Court considered also that the travel organiser was obligated to hand the traveller the travel conditions under the Regulation on duties to supply information in civil law – which serves to implement the EC Package Travel Directive. Though the Directive does not directly stipulate anything about the inclusion of standard business terms into the contract, it determines the criteria for the reasonableness of the possibility to study. Following a decision of the eighth civil chamber of the Federal Court of Justice on the law of sale (ZGS 2007, 65), the court ruled that the shortening of the limitation period was also materially invalid as the clause in question concerned all contractual claims for damages of the claimant. However, the liability for claims arising from bodily harm and damage to health and those based on gross fault, cannot validly be limited in standard business terms (article 309 number 7 (a) and (b) of the German Civil Code). The shortening of the limitation period for the claims in question also represents a limitation of liability, inadmissible because of this provision. The violation of article 309 number 7 of the German Civil Code results in the shortening of the period of limitation being wholly invalid.
  • Decision

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