Online trade database - surprising fee clauses invalid

The VII Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for the law on contracts for work and services, has ruled that remuneration clauses which, due to their typographical design, are so inconspicuously inserted into the overall appearance of a form that an averagely attentive commercial addressee cannot be expected to take notice of them do not become part of the contract pursuant to Section 305 (1) BGB.

In the case in question, the Federal Court of Justice had to decide on an action for work compensation brought by the operator of an online business directory.

The plaintiff sent unsolicited to tradesmen a form marked "Registration application for trade database", partly already pre-entered with the recipient's data, with the request to return it corrected and signed to the plaintiff. In an inconspicuous place on the form, hidden among other information, there was a fee clause in very small print on the form, according to which the recipient, in the case of the signed return of the form, concluded a contract with a two-year term at an annual cost contribution of € 773.50 gross.

The defendant, a tradesman, filled out the plaintiff's unsolicited form and returned it to the plaintiff, whereupon the plaintiff entered the defendant in its online business directory and charged him a gross amount of € 773.50, invoking the remuneration clause.

With its decision, the Federal Supreme Court confirmed the previous instances and dismissed the plaintiff's claim for compensation for work.

According to the Federal Court of Justice, the plaintiff was not entitled to a claim for payment against the defendant due to the surprising character of the fee clause used in the form "Application for registration in a trade database". The plaintiff's registration form did not make it sufficiently clear that it was an offer to conclude a two-year contract against payment. Even an averagely attentive commercial contracting party would not have to reckon with a remuneration clause such as the one used by the plaintiff.

 

Judgment of the BGH of 26.07.2012 - VII ZR 262/11

 

Lower courts:

AG Recklinghausen - Judgment of 24 May 2011 - 13 C 91/11

LG Bochum - Judgment of 15 November 2011 - 11 S 100/11

 

Goldberg Attorneys at Law 2012

Lawyer Christine Thede

E-mail: info@goldberg.de

Seal