Timeshare Directive, Article 6

(1) The protective effect, which applies when using a sample withdrawal policy, does not apply, if the user of the withdrawal policy made modifications.

(2) It is not considered abuse of law, if a declaration of intent is withdrawn after several years, even though during this period contractual performances were delivered.

(3) The assertion of the right of withdrawal is not forfeited, even though this right has not been asserted within 9 years, if not both requirements, element of time and element of circumstance, are met.

The parties are disputing about the effectiveness of withdrawal of a loan contract which the plaintiff had prematurely redeemed against prepayment penalty.

The plaintiff concluded a loan contract with the defendant for the amount of 2,000,000 Euro.
The loan contract contained a withdrawal policy, which was based on the Civil Code's sample withdrawal policy but which has been modified.

After the plaintiffs husband joined the contract as debtor, the plaintiff and her husband wanted to repay the loan in February 2013. The defendant did not agree to such special repayment without prepayment penalty trough the plaintiff.
Then, by writing of their representatives, the plaintiff and her husband referred to their contractual special repayment right and withdrew their declarations of intent, one directed at thehusband's joining as debtor and one at the conclusion of loan contract.
The defendant accepted the withdrawal of the joining of the husband as debtor, but not the withdrawal of the plaintiff and quantified a repayment penalty amounting to 75,258.74 Euro.

The plaintiff payed the repayment penalty in reservation of reclaim.

The plaintiff seeks for repayment of the reypament penalty and for determination that the defendant has no right to obtain repayment penalty.
The defendant seeks for the dismissal of the case.

(1) Does the protective effect by relying on a sample withdrawal policy still apply if few changes were made?

(2) Is it considered an abuse of law if a declaration of intent is withdrawn after several years, even though during this period contractual performances were delivered?

(3) Is the assertion of the right of withdrawal forfeited, if this right has not been asserted within 9 years?

The court held that a withdrawal policy only benefits from the protective effect of a sample withdrawal policy, if the policy has not been modified in any way. Moreoever, the behaviour of asserting the right of withdrawal only 9 years after conclusion of the contract is not considered as an abuse of law. Finally, the assertion of the right of withdrawal is not forfeited, even if it has not been asserted within 9 years. This is due the forfeiture having element of time and element of circumstance as its requirements. The requirement of the element of circumstance is not given in the present case. Thus, forfeiture had to be declined.

URL: http://www.finanztip.de/fileadmin/images/Kredit/Baufinanzierung/Widerrufsbelehrung/LG_Hamburg_U_302_O_159_13A.pdf

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The plaintiffs head of claim was mainly granted.