In a recent decision, the Federal Court of Justice addressed the requirements for incorporating general terms and conditions of supply (AGB) into a district heating supply contract concluded through conclusive conduct.
The defendant GmbH is the owner of a property in Cottbus. After the tenant moved out, whose district heating supply contract with the plaintiff had ended due to an effective termination by the tenant, the defendant drew district heating supplied by the plaintiff for its property. With a “contract confirmation,” the plaintiff then welcomed the defendant as a new customer, with whom a contract had been concluded according to § 2 of the AVBFernwärmeV. In a further letter dated September 19, 2008, the plaintiff sent the defendant a draft supply contract. This contract stipulated a three-year term and its extension by one year each, unless the contract was terminated with nine months' notice.
The defendant did not sign this contract. In March 2009, she declared the termination of the contract “with immediate effect.” The plaintiff argues that the contract would only end in September 2010 because her Supplementary General Terms and Conditions of Supply (AGB) stipulate a minimum term of one year and a six-month notice period for the customer before the expiration of the respective contract term. For the period from March 28, 2009, to October 29, 2009, the plaintiff claims, among other things, the basic price incurred for the billing period, totaling 4,633.19 Euros plus interest and reminder fees. The defendant had not drawn any district heating during this period.
The Local Court granted the claim. The Regional Court dismissed it upon the defendant's appeal. The appeal, which was admitted by the appellate court and by which the plaintiff essentially sought the reinstatement of the Local Court's judgment, was unsuccessful.
The VIII Civil Senate of the Federal Court of Justice, responsible among other things for sales law, ruled that the defendant is not bound by either the one-year minimum term and six-month notice period stipulated in the plaintiff's Supplementary General Terms and Conditions of Supply, nor by the nine-month notice period regulated in § 32 para. 1 AVBFernwärmeV.
The plaintiff's Supplementary General Terms and Conditions of Supply did not become part of the contract, as the necessary agreement for their incorporation, which is also required in commercial transactions, is absent. Mere “industry practice” is insufficient for the validity of General Terms and Conditions. Furthermore, neither § 1 para. 1 nor § 2 para. 3 AVBFernwärmeV indicates that these would have become part of the contract independently of an incorporation agreement (i.e., “automatically”). This is because both provisions do not regulate the incorporation of the conditions provided by the utility company into the contract. The defendant is not bound by the notice period regulated in § 32 para. 1 AVBFernwärmeV because this provision only applies to fixed-term contracts.
Judgment of the BGH of January 15, 2014 – VIII ZR 111/13
Lower Courts:
Local Court Cottbus – Judgment of April 12, 2012 – 43 C 393/11
Cottbus Regional Court – Judgment of March 27, 2013 – 1 S 86/12
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
