In a decision, the Federal Supreme Court (BGH) dealt with the question of the requirements for the inclusion of general terms and conditions of supply (GTC) in a district heating supply contract concluded by conclusive behaviour.
The defendant GmbH is the owner of a property in Cottbus. After the tenant, whose district heating supply contract with the plaintiff had ended due to the tenant's effective termination, moved out, the defendant took district heating provided 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 come into being in accordance with § 2 of the AVBFernwärmeV. In a further letter dated 19 September 2008, the plaintiff sent the defendant a draft supply contract. This provided for a three-year contract term and an extension of one year each, unless the contract was terminated with nine months' notice.
The defendant did not sign this contract. It declared the termination of the contract "with immediate effect" in March 2009. According to the plaintiff, the contract did not end until September 2010 because its Supplementary General Terms and Conditions of Supply (GTCS) provided for a minimum term of one year and a notice period of six months before the end of the respective contract period for the customer. For the period from 28 March 2009 to 29 October 2009, the plaintiff sought, inter alia, the basic charge incurred for the billing period, in total payment of EUR 4,633.19 plus interest and reminder fees. The defendant had not taken any more district heating during this period.
The district court allowed the action. The district court dismissed it on appeal by the defendant. The appeal allowed by the court of appeal, with which the plaintiff essentially sought the restoration of the judgement of the district court, was unsuccessful.
The VIII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the law of sales. Civil Senate of the Federal Court of Justice ruled that the defendant is not bound by the minimum term of one year and the notice period of six months provided for in the plaintiff's supplementary general terms and conditions of supply, nor is it bound by the nine-month notice period provided for in § 32 para. 1 AVBFernwärmeV.
The plaintiff's supplementary general terms and conditions of supply did not become part of the contract, as the inclusion agreement required in commercial transactions was missing. The mere fact that they are "customary in the industry" is not sufficient for general terms and conditions to be considered. Nor does it follow from § 1 par. 1 and § 2 par. 3 AVBFernwärmeV that they would have become part of the contract independently of an inclusion agreement ("automatically", so to speak). Neither of these provisions regulates the inclusion of the conditions imposed by the utility company in the contract. The defendant is not bound by the period of notice stipulated in § 32(1) AVBFernwärmeV because this provision only applies to contracts with a fixed term.
Judgment of the Federal Supreme Court of 15 January 2014 - VIII ZR 111/13
Lower courts:
AG Cottbus - Judgment of 12 April 2012 - 43 C 393/11
Cottbus Regional Court - Judgment of 27 March 2013 - 1 S 86/12
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
