BGH ruling: The customer's move does not entitle him to terminate his DSL contract extraordinarily.

from
Elmar Kloss
Lawyer
Specialist lawyer for intellectual property law
Specialist lawyer for information technology law

Give me a call: 0261 - 404 99 45
E-Mail:

III ZR 57/10

FEDERAL SUPREME COURT

IN THE NAME OF THE PEOPLE

Verdict

In the legal dispute

..

The III. Civil Senate of the Federal Court of Justice has on the oral proceedings of November 11, 2010 by the Vice President Schlick and the judges Dorr, Dr. Herrmann, Seiters and Tombrink

in the matter of

The plaintiff's appeal against the judgment of the 12th Civil Chamber of the Regional Court of Koblenz of March 3, 2010 is dismissed.

The plaintiff shall bear the costs of the appeal proceedings.

By operation of law

Facts

The defendant offers telecommunications services. In May 2007, it set up a DSL connection on the basis of a corresponding contract with the plaintiff, through which the plaintiff received access to the Internet, including Internet telephony, at his former place of residence. In addition, the contract included the use of a mobile phone with an all-inclusive tariff (mobile phone hat-rate). The contract was concluded for a period of two years. In November 2007, the plaintiff moved to another municipality in the same district. There are no DSL-capable lines there, so that the defendant was not able to install a DSL connection at the plaintiff's new place of residence. After it had communicated this to him with a letter dated November 6, 2007, the plaintiff declared the "extraordinary termination" of the contract on November 11, 2007.

Nevertheless, the defendant claims the agreed monthly basic fee for the intended term of the contract. It commissioned a collection agency to collect three months' fees plus interest.

In his lawsuit, the plaintiff seeks a declaration that the contract concluded between the parties was effectively terminated by the notice of termination as of November 12, 2007 and that he is not obliged to pay €221.52 (three monthly installments plus interest and costs). Furthermore, he has requested that the defendant be ordered to pay pre-trial legal fees. The action was unsuccessful in the lower courts. With his appeal allowed by the court of appeal, the plaintiff is pursuing his claims further.

Reasons for the decision

The admissible appeal on points of law is unsuccessful on the merits.

In the opinion of the court of appeal, the plaintiff's termination did not end the contractual relationship between the parties. The plaintiff's move to a location where the defendant cannot establish a DSL connection is no reason for extraordinary termination within the meaning of §§ 314, 626 BGB. The change of residence is solely part of the customer's sphere of risk and responsibility. It is also not unreasonable to hold the plaintiff to this assignment and thus to the existence of the contract. He had decided to enter into a continuing obligation, which had allowed him to benefit from a comparatively low monthly flat fee while accepting a longer term. He did not dispute the defendant's argument that there are also DSL connection contracts on the market that can be terminated at short notice, which take into account the customer's need for flexibility, but are only offered at a surcharge. It is common knowledge that the technical requirements for the provision of DSL are not met everywhere in Germany. Therefore, the plaintiff could not have expected the defendant to want to commit to guaranteeing DSL services everywhere. An exception to these principles could be assumed at most if the customer were forced to change location for unavoidable professional reasons. However, the plaintiff did not present any evidence of this despite being advised to do so.

This stands up to legal scrutiny. The claim is unfounded. The court of appeal was correct to assume that the plaintiff did not have good cause for terminating the contract. Accordingly, the contractual relationship between the parties has not ended. The defendant's claim for payment is not unfounded, and finally, the plaintiff cannot demand compensation for pre-trial legal fees either.

a) The Senate tends to characterize the contract by which the telecommunications service provider undertakes to provide a customer with access to the Internet as a service contract (decision of March 23, 2005 - III ZR 338/04 - NJW 2005, 2076). He has been able to leave the question open so far. Nor does it have to be decided now. Whether the plaintiff's right to extraordinary termination of the contract with the defendant under § 626 BGB or under § 314 BGB depends on the circumstances. This is because the requirements for good cause for termination of the legal relationship within the meaning of Section 626 (1) and Section 314 (1) sentence 2 BGB are essentially the same in terms of content, as can be seen from the wording of the two provisions.
b) The prerequisite for an extraordinary termination for good cause is that the terminating party cannot reasonably be expected to continue the contractual relationship, taking into account all the circumstances of the individual case and weighing the interests of both parties (e.g. BGH, Urteile vom 13. Februar 1995 - 11 ZR 225/93 - BGHR BGB § 626 Abs. 1 important reason 7; of November 9, 1992 - II ZR 234/91 - loc. cit. important reason 4 and of October 19, 1987 - II ZR 97/87 - loc. cit. important reason 1; regarding § 314 BGB: BGH, judgment dated March 9, 2010 - VI ZR 52/09 - NJW 2010, 1874, para. 15; see also on Section 313 BGB: BGH, judgment of April 30, 2009 -1 ZR 42/07 - BGHZ 181, 77, para. 72). This is generally only to be assumed if the reasons on which the termination is based lie within the sphere of risk of the party against whom the termination is asserted (see Federal Court of Justice, judgment of March 9, 2010, loc. cit. with further references). If, on the other hand, the reason for termination is derived from events that are beyond the control of the party against whom termination is sought and originate from the terminating party's own sphere of interest, this only justifies termination without notice in exceptional cases (see BGH, judgment of December 13, 1995 - XII ZR 185/93 - ZMR 1996, 309, 311 and of November 29, 1995 - XII ZR 230/94 - BGHR BGB § 242 termination, important reason 10 jew. to the lease). The demarcation of the risk areas results from the contract, the purpose of the contract and the applicable statutory provisions (see BGH, judgment of March 9, 2010, loc. cit. with further references).

Whether certain circumstances can be considered good cause for termination without notice according to these criteria is primarily a matter for the trial judge to decide. The review by the court of appeal extends only to whether the court of fact has correctly understood the legal concept of good cause, whether it has ruled on the basis of a complete investigation of the facts, and whether it has included in its assessment all the circumstances of the specific case (e.g. BGH, decision of December 10, 2007 - II ZR 289/06 - BGHR § 626 para. 1 important reason 12; judgment of February 24, 2003 - II ZR 243/02 - ZIP 2003, 759, 760; see also judgment of March 9, 2010, loc. cit. para. 17).

c) According to these standards, the assessment of the court of appeal and the weighing of interests on which it is based cannot be objected to.
aa) The creditor of a service who can no longer use the service as a result of a change of residence has, from the outset, an understandable interest in no longer paying the service provider from the point of view of the contractual parity. However, the court of appeal, in accordance with the case law of the Federal Court of Justice cited above, correctly assumed that the customer who enters into a long-term contract for the provision of a service generally bears the risk of no longer being able to use it due to a change in his personal circumstances. Accordingly, a move, for example for family or professional reasons, does not in principle constitute good cause for extraordinary termination under § 626 para. 1 BGB (so for a fixed-line telephone network contract LG Munich I ZGS 2008, 357, 360; a.A. AG Ulm BeckRS 2008, 22785). The reasons for such a change of domicile by the service recipient lie solely within the recipient's sphere and cannot be influenced by the service provider.
bb) The further consideration of the court of appeal, which refers to the specific contract, is also correct, namely that the relatively long contract term of two years, which is at the limit of what is permissible in general terms and conditions according to § 309 no. 9 letter b BGB, was the economic "consideration" of the plaintiff for a lower monthly base price and that a contract with a shorter term or monthly terminability at higher costs would have been possible. It follows that, under the contract concluded between the parties, the risk of the usability of the DSL connection during the agreed term lies with the plaintiff, because the plaintiff accepted the comparatively long contract term for the sake of its pecuniary advantage.
cc) In this context, the weighing of interests must also take into account the fact that, as the defendant stated in its submission of September 23, 2008, without contradiction, the provision of the DSL connection entails considerable costs for the defendant, in particular for the provision of equipment (router, WLAN stick), which, due to the low monthly basic fees, are regularly only amortized during the second year of the contract. It is unreasonable to expect the defendant to forgo the amortization of its initial costs due to circumstances arising solely from the customer's sphere. The same applies to the calculated profit during the agreed minimum term, which it can subsequently achieve and on which it may rely. On the other hand, the plaintiff is not burdened in an economically unreasonable manner by the continued payment of the moderate monthly basic amounts. This applies all the more since he can continue to make partial use of the defendant's performance by using the mobile phone.
dd) The further consideration of the court of appeal, which was included in the weighing and is not objected to by the plaintiff, is that it is common knowledge that the technical requirements for DSL connections are not met at any location in Germany. Thus, the plaintiff knew, or at least could have expected, that if he moved, there was no guarantee that the defendant would be able to provide its services at the new location. Thus, the plaintiff, who was at least aware of the circumstances,possible - knowledge of the circumstances, the risk that if he changed his place of residence during the longer minimum contract period that he accepted, the fulfillment of the contract would become impossible due to circumstances within his control.

The objections raised by the appeal on this point are unfounded. It believes that the decisive questions – to be answered to the detriment of the defendant – are whether the customer, who moves within the same district over a relatively short distance, must expect that a DSL connection will not be available at the new place of residence, and whether the defendant is obliged to inform its customers that it cannot guarantee ubiquitous service availability. If, as can be assumed from the findings of the court of appeal, which have not been challenged by the appeal, it is generally known, at least among customers who, like the plaintiff, are interested in a DSL connection, that this technology is not yet available everywhere in Germany, a subscriber mustthat even if they move within the same district, the DSL technology is not yet available at the new place of residence. Whether this is the case depends on the existing lines, the laying of which, as the customer can expect, is not based on municipal boundaries, but on the respective technical and geographical conditions. The audit also did not reveal any omitted factual presentation by the plaintiff, according to which the defendant provided false or insufficient information regarding the availability of DSL technology.

Nor does the plaintiff have a right of termination under Section 313 (3) sentence 2 BGB (loss of business basis). Even when applying § 313 BGB, it must be noted that, in principle, each party bears the risks arising from the contract itself (BGH, judgment of April 30, 2009 - I ZR 42/07 - BGHZ 181, 77, marginal no. 71). In particular, a person who has brought about the decisive change in circumstances, such as the move in this case, cannot derive any rights from that change (BGH loc. cit.). There are no circumstances that could exceptionally justify a deviation from these principles for the reasons stated above.
The plaintiff is also obliged to pay the requested monthly basic fees if it were considered that the defendant was (partially) unable to provide the service incumbent upon it as a result of the plaintiff's move, so that the defendant's claim under the contract would be excluded in accordance with § 275 ( 1 BGB would be excluded. In any case, the defendant would retain its claim to the consideration in accordance with § 326 para. 2 sentence 1 BGB. For this reason, the action is also unfounded to the extent that the plaintiff demands a declaration that he is not obliged to pay the three monthly installments claimed by the defendant through the collection agency, including additional costs. According to § 326 para. 2 sentence 1 BGB, the debtor, who is released from his obligation to perform under § 275 para. 1 to 3 BGB, can continue to demand the consideration if the creditor is solely or predominantly responsible for the circumstance leading to the discontinuation of the obligation to perform. The creditor's responsibility may arise not only from breaches of primary or secondary contractual obligations (Section 276 BGB), but also from the fact that, according to the contractual distribution of risk, he has assumed the risk of a specific impediment to performance (already the case under Section 324 BGB (old version) Senate judgment dated October 18, 2001 - III ZR 265/00 - NJW 2002, 595 m.w.N.; furthermore Palandt/Grüneberg, BGB, 69th ed., § 326 Rn. 9; Bamberger/Roth/Grothe, BGB, 2nd ed., § 326 Rn. 14). The plaintiff's move, which led to the discontinuation of the defendant's obligation to perform, falls within his contractual sphere of risk for the reasons stated above.

The amount of the claims asserted by the defendant does not give rise to any concerns. The appeal also raises no objections in this regard.

Finally, the plaintiff cannot demand compensation for pre-trial legal fees (Section 280 (1) BGB) either, since the defendant did not violate any obligations arising from the contractual relationship by asserting its legal position.

Schlick Dörr Herrmann

Selters Tombrink

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.