• Rechtssachenbeschreibung
    • Nationale Kennung: 17 U 259/05
    • Mitgliedstaat: Deutschland
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 18/07/2006
    • Gericht: Oberlandesgericht
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Deutschland Deutsch
  • Artikel der Richtlinie
    Doorstep Selling Directive, Article 1, 1.
  • Leitsatz
    Auch wenn ein enger zeitlicher Zusammenhang zwischen den mündlichen Vertragsverhandlungen und der Vertragserklärung von § 1 Abs. 1 Nr. 1 HWiG nicht gefordert wird, kann bei zunehmendem zeitlichen Abstand die Indizwirkung für die Kausalität der situationsbedingten Beeinträchtigung der Willensentschließungsfreiheit entfallen.
    Ein Kausalzusammenhang zwischen Kosten(?)situation und Abschluss des Darlehensvertrages scheidet danach regelmäßig aus, wenn der Verbraucher den Darlehensvertrag etwa drei Wochen nach dem Erstkontakt in der Haustürsituation unterzeichnet und er zuvor bereits den Fondsbeitritt in notarieller Form erklärt hat.
    Der Darlehensnehmer eines mit dem Anlagegeschäft gem. § 9 Abs. 1 VerbrKrG verbundenen Darlehensvertrages kann von der kreditgebenden Bank nur dann im Wege des Schadensersatzes verlangen, so gestellt zu werden, als wäre er den Fonds nicht beigetreten, wenn er durch den Fonds- und Kreditvermittler vorsätzlich (nicht notwendig arglistig) getäuscht worden ist (Interpretation von BGH, Urt. vom 25.4.2006 - XI ZR 106/05).
  • Sachverhalt
    The parties are fighting over the unwinding of a loan granted by the defendant bank used to finance the accession to a closed real estate investment fund. According to the investment plan, which had been developed by the founding partnership (GbR – Gesellschaft bürgerlichen Rechts) and a partner and was marketed via a marketing company, the investors which had been acquired by investment brokers each had to make a notarised offer to join the fund after their financial situation had been checked and had to acquire the resources for their investment by taking out a bank loan. The loan value was to be transferred to a trust account belonging to the founding partnership.

    The plaintiffs, who had been acquired as customers by an investment broker, on 16 November 1995 both signed a offer to join the real estate fund no. 36 issued by W. relating to two pieces of real estate, filled out a form to provide information about their financial situation and signed an offer to take out a cash-value life insurance policy. By notarised statement of the same day directed at the GbR, the plaintiffs both declared their accession to the fund with respect to a share of 61.300 DM. On 24 November 1995, the plaintiffs signed written offers to take out a loan worth DM 70.480 (net worth: DM 63.432) at a nominal interest rate of 7,98 % and a fixed-interest period lasting until 1 November 2004. The defendant accepted the offers on 29 December 1995. The loan was to be repaid until 1 November 2014 via the plaintiffs’ life insurance policy which had been transferred to the defendant. As agreed, the defendant transferred the loan value to the trust account.

    The plaintiffs paid the required interest rate from December 1995 to 30 March 2005, amounting to 19.746, 75 € in total. They claim the loan agreement to be void due to lack of form, since the agreement did not contain the minimum specifications as prescribed by consumer credit law. In addition, they raise an objection against the obligation to repay the loan on the grounds of their declaration of intent to join the investment fund having been obtained by deceit. Apart from that, they had declared the “withdrawal from the loan agreement” by letter to the defendant dating from 5 August 2004.

    The plaintiffs claim the repayment of their interest payments together with default interest and the reassignment of their rights arising from the life insurance policy, each of these items versus the reassignment of the purchased share in the fund and the reassignation of their claims “against all parties liable to pay damages”. Additionally, they apply for the declaration that the defendant is not entitled to any further claims from the loan agreement (release).

    The Regional Court had upheld the claim (except a part of the monetary claim and the application for the declaration) holding that the loan agreement was void due to lack of the form required by §§ 4, 6 VerbrKrG (in the version in force until 30 September 2000).
  • Rechtsfrage
  • Entscheidung

    The Higher Regional Court has overruled the Regional Court’s judgement and for the most part dismissed the claim.

    There has been no valid withdrawal from the declarations of intent made by the plaintiffs with respect to the conclusion of the loan agreement, since the requirements of § 1(1) no. 1 HWiG have not been met. Consequently, the agreement is not to be wound up under § 3 HWiG.

    The loan agreement has not been concluded in a doorstep situation. The plaintiffs state that an employee of the marketing company had addressed them in front of their house in the end of October 1995 or the beginning of November 1995 and that they had subsequently been induced to invest in the fund. The surprise effect created by this situation had still been lasting when they had signed the membership application and the information form in the marketing company’s office and subsequently notarised their declaration on 16 November 1995 and even when they signed the application for the loan directed to the defendant on 24 November 1995.

    On this factual basis, the senate could not establish the existence of a doorstep situation entitling the plaintiff to withdraw from the loan agreement. § 1(1)(1) no. 1 HWiG does indeed not require the contract to be concluded under the immediate influence of a doorstep situation. Rather, it is sufficient if the doorstep situation has influenced the contract negotiations which are at least partly causative to the conclusion of the contract. The requirements of § 1(1) HWiG are met if the situation has compromised the customer’s freedom of choice between accepting or rejecting the contract which would later be offered to him (Federal Court of Justice, judgement of 9 May 2006 – XI ZR 119/05). In particular, it is not necessary for the verbal contract negotiations and the consumer’s declaration of intent leading to the conclusion of the contract to both have occurred within a narrow time frame. However, it is possible that the indicative effect with respect to the causality of the impairment of the consumer’s freedom of choice arising from that situation for the contract declaration does not apply, if a considerable amount of time has passed between the two events.

    Applying these principles to the current case, it cannot be held that the loan agreement was concluded under the influence of a lasting surprise effect typical for doorstep transactions. Upon the signing of the application for the loan on 24 November 1995, the original surprise effect caused by the doorstep situation did no longer last. Thus, the plaintiffs’ freedom of choice was not impaired. The causality between the events was broken by the notarised declaration of accession made on 16 November 1995. Not only did the plaintiffs on that day voluntarily betake themselves to the marketing company’s office to sign the membership application, but also frequented the notary’s office to finalise and legally implement the investment decision initiated between 2 and 3 weeks before. By doing so, the plaintiffs did not behave like surprised consumers. A possible lasting impairment of their freedom of choice has in any case been removed by their free exertion of will on 16 November 1995. At the time the notarised declaration was made a possible surprise effect did thus no longer last. The same has to apply with respect to the offer to conclude a loan agreement the plaintiffs made at a later date, since it is closely connected to the decision to join the fund. For these reasons there is no basis for a right of withdrawal.

    The Regional Court’s holding that the missing specification of the total amount of the loan in one of the loan agreements constitutes an infringement of § 4(1)(4) no. 1 lit. b VerbrKrG is legally correct. In particular, this provision on the minimum specifications in consumer credit agreements is not overruled by the exceptional clause of § 3(2) no. 2 VerbKrG. As per § 6(1) VerbrKrG, this infringement makes the loan agreement null and void (FCJ, judgement of 8 July 2004 – XI ZR 150/03 and judgment of 14 September 2004 – XI ZR 11/04). This correct assessment is no longer contested by the defendant.

    The Regional Court’s holding that the loan agreement’s nullity due to lack of form was healed as per § 6(2)(1) VerbrKrG by payout of the loan is correct, as has already been found by the Federal Court’s 11th senate (civil branch) by judgement of 25 April 2006 – XI ZR 193/04. This senate has (at least with respect to the result) gone along with this decision in several findings.

    Against their obligations arising from the loan agreement the plaintiffs cannot raise an objection based on the fact that they have a claim for damages against the fund partnership. The defendant’s direct liability for damages due to the breach of precontractual information duties has not been claimed by the plaintiffs. In addition, they cannot claim damages under an analogy to § 9(3) VerbrKrG. Although the Federal Court of Justice’s 2nd senate (civil branch) has (by power of judicial law-making) constructed a general liability for damages due to the breach of precontractual information duties under the condition of the existence of joined contracts in the terms of § 9 VerbrKrG (initially by judgement of 14 June 2004 – II ZR 407/02; subsequently for loan agreements backed by real estate securities by judgment of 21 March 2005 – II ZR 411/02), this approach has been abandoned by the Federal Court of Justice (cf. FCJ, judgement of 25 April 2006 – XI ZR 106/05.

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