The XI Civil Senate of the Federal Court of Justice, which is responsible for banking law among other things, today ruled on the effectiveness of a revocation after the conclusion of a consumer loan agreement.
In April 2008, the plaintiffs concluded a loan agreement with the defendant for a nominal amount of € 50,000. Mortgages on real property served as collateral for the defendant. The defendant informed the plaintiffs about their right of cancellation. The plaintiffs made interest and redemption payments. On 24 June 2013, they revoked their declaration of intent to conclude the loan agreement. They paid the defendant a further € 40,625.33 without acknowledging a legal obligation.
The Regional Court dismissed their claim for payment of the difference between this amount and the amount of € 34,809.73 still owed to the defendant when the revocation took effect, thus for payment of € 5,815.60. The Regional Court also dismissed their claim for payment of the difference between this amount and the amount owed to the defendant when the revocation took effect. On appeal, the Higher Regional Court awarded the plaintiffs part of the claim and dismissed the remainder of the appeal. The XI Civil Senate dismissed the defendant's appeal, which was admitted by the Higher Regional Court and directed against the awarding part. On the cross-appeal of the second plaintiff, which it also filed as the legal successor of the first plaintiff, the XI Civil Senate ordered the defendant to pay a small additional amount, rejecting the rest of the appeal.
The following considerations were the main guiding principles:
The Higher Regional Court correctly found that the cancellation period had not yet expired when the right of cancellation was exercised on 24 June 2013. The cancellation notice attached to the loan agreement, which stated that the cancellation period would begin "at the earliest upon receipt of this notice", did not inform the plaintiffs sufficiently clearly about the beginning of the cancellation period. The defendant cannot rely on the legal fiction of the model for the revocation instruction introduced by the legislator because it made considerable changes to the model. The plaintiffs have neither forfeited the right of withdrawal nor exercised it in any other inadmissible way. Only with regard to the legal consequences resulting from the revocation did the Higher Regional Court not sufficiently consider that it remained undisputed between the parties that the plaintiffs had made a payment in the amount of € 375 and not only in the amount of € 125 to the defendant on 30 April 2008.
Judgment of the Federal Supreme Court of 12 July 2016 - XI ZR 564/15
OLG Nuremberg - Judgment of 11 November 2015 - 14 U 2439/14
Nuremberg-Fürth Regional Court - Judgment of 27 October 2014 - 10 O 3952/14
Source: Press release of the BGH
Goldberg Attorneys at Law 2016
Specialist lawyer for information technology law