For the reasons:
(...)
On October 30, 2009, the parties entered into an "Internet System Contract" referred to as "Euroweb Premium Plus". In addition to the connection costs of €199 plus VAT, which were payable upon conclusion of the contract, the defendant had to pay a fee of €175 plus VAT per month for the agreed contract term of 48 months, i.e. €208.25. With regard to the payment of the fee, §. 1 para. 1 of the plaintiff's General Terms and Conditions of Business, which are referred to in the contract, provides for an annual advance payment obligation on the part of the defendant. In addition, § 2 para. 1 sentence 1 of the General Terms and Conditions states: "During the term of the contract, the contract may be terminated for good cause if the legal requirements are met."
The defendant did not pay the connection costs and the fee for the first year of the contract. The fees due for this period plus the connection fee make up the subject of the claim.
The defendant declared the termination of the Internet System Contract with a letter dated October 5, 2010 (Appendix B 10).
An enforcement order has been issued against the defendant by the Hagen District Court on August 13, 2010, AZ: 10-2362444-02-N, for € X, against which an appeal has been lodged.
In the summary proceedings based on documentary evidence, the plaintiff requests that
uphold the enforcement order of the Hagen District Court dated August 13, 2010, ref.: 10-2362444-02-N.
The defendant requests that
dismiss the action.
The defendant raises various objections to the claim. Furthermore, the defendant has made use of his free right of termination in accordance with § 649 BGB. Any exclusion of this right of termination is inadmissible.
...
The action is unfounded. It is to be dismissed in accordance with § 597 (1) ZPO and not merely as inadmissible in the summary procedure based on documents because the claim asserted in the action proves to be unfounded "per se".
The plaintiff has no claim against the defendant under Section 631 (1) BGB.
A contract for work has been concluded between the parties (BGH, NJW 2010, 1449). Due to the legal qualification as a contract for work, the defendant is also in principle entitled to the right of free termination according to § 649 sentence 1 BGB, of which the defendant has made use. Contrary to the plaintiff's view, it does not follow from the BGH ruling that termination in accordance with § 649 BGB is not possible. This merely addresses termination in accordance with § 314 BGB; it is generally accepted that this right of termination exists alongside the option of termination in accordance with § 649 BGB. In particular, due to the different legal consequences of the two grounds for termination, it cannot be concluded from the fact that the Federal Court of Justice considered further findings by the court of appeal to be necessary that it assumed that § 649 BGB was inapplicable.
The right to terminate has not been excluded by Section 2 (1) of the General Terms and Conditions. Although this is apparently intended, this exclusion is ineffective according to § 307 para. 1, para. 2 no. 1 BGB because it is incompatible with the essential principles of the statutory regulation and unreasonably disadvantages the plaintiff's contractual partner. In particular, in the case of long-term contracts, Section 649 sentence 1 BGB cannot be waived in general terms and conditions, or at least only for important reasons (Spray in Palandt, German Civil Code, 68th edition, Section 649, marginal note 17). No such serious reasons on the part of the plaintiff are apparent. With reference to the above-cited ruling by the Federal Court of Justice, the court agrees that the plaintiff is pursuing legitimate economic interests and that the obligation to provide advance performance is therefore effective because the plaintiff provides a significant portion of the services to be provided at the commencement of the contract. However, the plaintiff's mere financial interest cannot constitute a legitimate reason to waive the right of termination pursuant to § 649 BGB, because § 649 BGB protects the plaintiff's economic interests. This is because, according to § 649 sentence 2 BGB, the plaintiff retains its claim to the remuneration, minus any saved expenses, calculated according to the full contract term.
The plaintiff has not conclusively established a claim under § 649 sentence 2 BGB. In the defendant's written submission of November 2, 2010, to which the court referred in the oral proceedings on November 22, 2010, with additional reference to the required presentation with regard to § 649 p. 3 BGB, the plaintiff was advised that the claim for remuneration under § 649 sentence 2 BGB had not yet been conclusively established. In this respect, the claim for remuneration only continues to exist insofar as the entrepreneur has not saved any expenses as a result of the cancellation of the contract and he does not acquire or maliciously fails to acquire income by using his labor elsewhere. Although the client is generally responsible for demonstrating and proving the corresponding deductions, the company must first distinguish between the services provided and those not provided and bill them separately. For the latter, saved expenses and other earnings must be deducted. For this settlement, including the deductions for the services not provided, the entrepreneur must present the case conclusively and with reference to the specific contract, in sufficient detail to enable the client to check and safeguard his rights.
Section 649 sentence 3 BGB does not even partially help the plaintiff to success in the amount of 5%. This provision does apply in the present case because the Internet System Contract was concluded after January 1, 2009 (Art. 229; 19 para. 1 EGBGB). Accordingly, it is assumed that the company is entitled to 5% of the agreed remuneration attributable to the portion of the work not yet performed. This assumption must, in principle, be refuted by the customer. According to the court, this presumption can only apply if the entrepreneur, under a secondary burden of proof, presents the calculation on which the contract is based. If this were not the case, the customer would have no way of refuting the presumption established by § 649 sentence 3 BGB because he has no insight into the business sphere of the plaintiff. A presumption that cannot be refuted because the entrepreneur does not present any circumstances to be refuted would reduce Section 649 BGB to absurdity. In this respect, the action is dismissed in its entirety.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.