A decision of the Federal Court of Justice (BGH) of 17 June 2015, reference VIII ZR 249/14, is now becoming interesting for all consumers and heating oil suppliers shortly before the start of winter.
The Federal Court of Justice (BGH) has ruled that every consumer who has concluded a heating oil supply contract at a distance (order by telephone, fax, internet or e-mail) can revoke his or her contractual declaration within 14 days, as with any other distance contract, unless the heating oil has already been delivered and is already in the consumer's own oil tank.
So far, there have been differing opinions on whether consumers have a right of withdrawal from heating oil supply contracts concluded at a distance. This legal question has now been clarified and decided by the Federal Supreme Court.
The Federal Court of Justice (Bundesgerichtshof, BGH) has ruled that consumers have a right of withdrawal for heating oil supply contracts concluded by means of distance selling. In the case of distance contracts for the supply of heating oil, the consumer's right of withdrawal is not excluded under Section 312d (4) no. 6 BGB aF. According to the BGH, the characteristic feature of this exemption provision is that the speculative character constitutes the core of the transaction. However, according to the BGH, the purchase of heating oil by the consumer does not have such a speculative core. Therefore, according to the BGH, this exception does not apply. The BGH has already recognised the consequences of its judgement and states in this regard in the judgement: "It is true that the right of withdrawal enables the consumer to withdraw from the distance contract, subject to § 312d para. 4 no. 1 BGB aF, if the heating oil price falls within the withdrawal period. However, this distribution of risk is inherent in the law and therefore acceptable (cf. Senate judgment of 19 March 2003 - VIII ZR 295/01, BGHZ 154, 239, 243)".
If the heating oil prices fall after the order has been placed, the consumer can revoke his declaration (order), provided that the other requirements for revocation are met, and must then no longer accept the ordered and "purchased" heating oil at the higher price on the basis of the exercised revocation.
This can save consumers money and heating oil suppliers a lot of money.
It must be taken into account that the decision of the Federal Supreme Court concerned the old regulations on the right of withdrawal, which applied until 13 June 2014. However, the right of withdrawal in force since 13.06.2014 also has a corresponding regulation, so that the change in the law should not have any effect on the decision of the BGH.
Source: Judgment of the Federal Supreme Court of 17 June 2015, file number VIII ZR 249/14
Please do not hesitate to contact us if you have any questions on this topic.
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
