Case law

  • Case Details
    • National ID: 20 U 102/99
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 03/11/1999
    • Court: Oberlandesgericht (Appellate court, Hamm)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, Article 4, 1. Unfair Contract Terms Directive, Article 4, 2.
  • Headnote
    1. If a general insurance clause is formulated too unprecisely, then in cases of doubt, according to § 5 AGBG (Allgemeine Geschäftsbedingungsgesetz – Standard Contract Terms Act), the interpretation most favourable to the policyholder is to be chosen (contra preferentem rule).
  • Facts
    The claimant holds a daily sickness insurance policy with the respondent, which is based upon the recommended conditions MB/KT 94 (Musterbedingungen 1994 Krankentagegeldversicherungen – model conditions 1994 for daily sickness insurance). A daily sickness benefit of 100 DM per day was agreed. From 11.8.1997 until 31.10.1998 the claimant was incapacitated from work due to illness. The respondent initially paid the agreed daily sickness benefit of 100 DM per calendar day. By letter of 10.12.1997, it informed the claimant that it was reducing the daily sickness from 100 DM to 40 DM according to § 4 MB/KT with effect from 1.1.1998 and that the monthly premium would consequently reduce from around 67 DM to 21.89 DM. It reasoned that the daily income of the claimant in the last twelve months was around 116 DM per day. The claimant however received a total of 297.72 per day from daily sickness benefit from the respondent and the mandatory (state) sickness insurance, which was impermissible according to the conditions. The respondent relies on § 4 (2) MB/KT 94, according to which the daily sickness benefit together with other daily sickness benefits may not exceed the net daily income from professional activity. Pursuant to its communication, the respondent paid the claimant a daily sickness benefit of only 40 DM during the period 1.1. to 31.10.1998. The claimant sues for the difference of 60 DM for the named period of time of 304 days in total.
    The Landgericht (district court) entered judgment against the respondent in the terms of the application for payment of 18240 DM. The respondent’s appeal was unsuccessful.
  • Legal issue
    The Senate stated that § 4 (2), 2nd sentence of the general conditions of insurance relating to the calculation of net income is formulated too imprecisely. According to the clause, the “average earnings of the policyholder for the last twelve months prior to making the application or before the relevant date of incapacity save where the tariff provides for another period of time” is determinative of the calculation. This imprecise formulation allows at least three possible interpretations, which would each produce a different outcome. Because the clause was not made more precise in the concrete case, and none of the interpretation possibilities upon reasonable appraisal and consideration of the recognisable grounds of factual connection are to be preferred over the others, then in doubt, according to § 5 AGBG, the clause is to be construed to the detriment of the user. Thus, the interpretation most favourable to the policyholder is to be chosen. In the concrete case, it is to be understood as a direction to the contracting parties to agree the daily sickness benefit on the basis of the net income of the previous twelve months and expected other sickness benefits. Only this understanding of the condition would secure the relation of performance and payment, as thus the insurance service and the agreed premium would correspond. § 4 (2) MB/KT is therefore to be understood as merely a direction to the contracting parties.
    The Senate further argued that application of the principle of transparency would not produce any other result either. According to this principle formulated in the EC Directive of 5.4.1993 on Unfair Terms in Consumer Contracts, the interpretation most favourable to the consumer always applies in the case of unclear formulation as well. As § 5 AGBG serves the transposition of the provision, no other standards would apply here. Also according to this provision, § 4 (2) MB/KT would only be a rule without sanction.
  • Decision

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