The XI Civil Senate of the Federal Court of Justice, which is responsible for banking law, among other things, has established principles on the objection of abuse of rights when exercising a right of withdrawal.
The plaintiff concluded a loan agreement with the defendant on 25 November 2001, which served to finance an investment in a fund company, while the Doorstep Selling Revocation Act was still in force and, according to the plaintiff, after initiation in a doorstep situation. A revocation instruction was attached to the loan agreement. The plaintiff repaid the loan in full by 15 January 2007. In a letter dated 20 June 2014, he revoked his declaration of intent to conclude the loan agreement.
The plaintiff's action for payment and indemnification in exchange for the assignment of the shareholding and for a declaratory judgement was unsuccessful in both lower instances. The XI Civil Senate overturned the plaintiff's appeal, which was allowed by the Higher Regional Court, and referred the case back to the Court of Appeal for a new hearing and decision.
The following considerations were decisive for this: The revocation instruction was - assuming in favour of the plaintiff that the loan agreement was initiated in a doorstep situation and thus the existence of a right of revocation according to the Doorstep Selling Revocation Act - not correct. This is because it related the consumer's signature simultaneously to the instruction text itself and to an acknowledgement of receipt immediately following the instruction text. However, when deciding whether the exercise of the right of withdrawal was an abuse of rights, the Higher Regional Court incorrectly thought that it could charge the plaintiff with having wanted to free himself from the negative consequences of an unfavourable investment by withdrawing. The Higher Regional Court was not allowed to include the plaintiff's motive for exercising the right of withdrawal in its overall assessment to the plaintiff's detriment solely because it lay outside the protective purpose of the Doorstep Selling Act.
The Higher Regional Court will have to clarify whether, on which the existence of a right of cancellation under the Doorstep Selling Act depends and which the defendant denies, the loan agreement was actually initiated in a doorstep situation. If necessary, it will have to examine whether the plaintiff acted in abuse of rights for other reasons and whether the plaintiff's right of cancellation is forfeited.
Judgment of the Federal Supreme Court of 12 July 2016 - XI ZR 501/15
Lower courts:
Hanseatic Higher Regional Court Hamburg - Judgment of 16 October 2015 - 13 U 45/15
Hamburg Regional Court - Judgment of 15 April 2015 - 301 O 156/14
Source: Press release of the BGH
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
