The III Civil Senate of the Federal Court of Justice (BGH) has ruled on the question of whether and under what conditions there is a claim to remuneration for a service that is to be provided using supernatural, magical powers and abilities (here: life counselling in connection with card reading).
The dispute was based on the following facts:
The plaintiff works as a self-employed person with a business registration and offers life counselling ("life coaching"), whereby she gives her advice on the basis of insights gained through card reading. In September 2007, the defendant came across the plaintiff in a life crisis triggered by relationship problems. Subsequently, she read his cards and gave him advice on the phone in many cases on various - private and professional - life issues. The defendant paid more than € 35,000 for this in 2008. For services rendered in January 2009, the plaintiff demands € 6,723.50 in her action. The action was unsuccessful in both lower instances. The Regional Court and the Higher Regional Court denied the claim for remuneration on the grounds that the service promised by the plaintiff was directed towards the use of supernatural, magical powers and abilities and was thus objectively impossible, so that the claim for counter-performance (remuneration) pursuant to § 326 (1) sentence 1 BGB, § 275 (1) BGB did not apply.
The Third Civil Senate of the Federal Supreme Court first approved the assumption of the lower courts that the performance promised by the plaintiff was objectively impossible. A service is objectively impossible if it cannot be provided according to the laws of nature or according to the state of knowledge of science and technology. This is the case with the promise of the use of supernatural, "magical" or parapsychological powers and abilities.
However, it does not necessarily follow from the objective impossibility of the promised performance that the plaintiff's claim for remuneration pursuant to § 326 para. 1 sentence 1 BGB lapses. Within the framework of contractual freedom and in recognition of their self-responsibility, the contracting parties can effectively agree that one party undertakes - against payment - to provide services whose fundamentals and effects cannot be proven according to the findings of science and technology, but only correspond to an inner conviction, a belief to that effect or an irrational attitude that is not comprehensible to third parties. If someone "buys" such services in the knowledge that the suitability and fitness of these services to achieve the desired success cannot be rationally explained, it would contradict the content and purpose of the contract as well as the motives and ideas of the parties to deny the service provider's claim to remuneration. According to the circumstances of the case, it is not far-fetched to assume that the plaintiff, according to the intention of the parties, could claim the agreed remuneration irrespective of the fact that the "suitability" of the service rendered is not rationally verifiable.
The Federal Supreme Court referred the case back to the Court of Appeal in order to clarify whether such an intention of the parties existed, but also in order to answer the question, which had been left open so far, whether the agreement of the parties was void under § 138 BGB due to immorality. In this context, it must not be misjudged that many people who conclude such contracts are in a difficult life situation or are gullible, inexperienced or mentally unstable. Therefore, in such cases, the requirements for a violation of morality within the meaning of Section 138 (1) of the German Civil Code must not be too high.
Judgment of the BGH of 13 January 2011 - III ZR 87/10
Lower courts:
Regional Court of Stuttgart - Judgment of 9 October 2009 - 19 O 101/09
Stuttgart Higher Regional Court - Judgment of 8 April 2010 - 7 U 191/09
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
