The Third Civil Senate of the Federal Court of Justice (BGH) has ruled on the question of whether and under what conditions a claim for remuneration exists for a service purportedly rendered through the use of supernatural, magical powers and abilities (specifically: life coaching combined with card reading).
The dispute was based on the following facts:
The plaintiff operates as a self-employed individual with a business registration, offering life coaching and providing advice based on insights gained through card reading. In September 2007, the defendant, experiencing a life crisis due to relationship problems, sought out the plaintiff. Subsequently, she frequently read cards for him over the phone regarding various personal and professional life issues and offered advice. For these services, the defendant paid over €35,000 in 2008. The plaintiff is now claiming €6,723.50 for services rendered in January 2009. The lawsuit was unsuccessful in both lower courts. The Regional Court and the Higher Regional Court denied the asserted claim for remuneration, reasoning that the service promised by the plaintiff involved the use of supernatural, magical powers and abilities, making it objectively impossible, and thus precluding the claim for consideration (payment) under Section 326 (1) sentence 1 BGB and Section 275 (1) BGB.
The Third Civil Senate of the Federal Court of Justice initially affirmed the lower courts' finding that the service promised by the plaintiff is objectively impossible. A service is objectively impossible if it cannot be rendered at all according to the laws of nature or the current state of scientific and technical knowledge. This holds true for promises involving the use of supernatural, "magical," or parapsychological powers and abilities.
However, the objective impossibility of the promised service does not necessarily mean that the plaintiff's claim for remuneration under Section 326 (1) sentence 1 BGB is precluded. Within the scope of contractual freedom and in recognition of their self-responsibility, contracting parties can validly agree that one party undertakes – for a fee – to provide services whose underlying principles and effects are not demonstrable according to scientific and technical knowledge, but rather correspond only to an inner conviction, a belief to that effect, or an irrational attitude incomprehensible to third parties. If someone "purchases" such services with the awareness that their suitability and efficacy for achieving the desired outcome are not rationally explicable, then denying the service provider's claim for remuneration would contradict the content and purpose of the contract, as well as the motives and intentions of the parties. Under the circumstances of the case, it is not unreasonable to assume that, according to the parties' will, the plaintiff could claim the agreed remuneration irrespective of the fact that the "suitability" of the rendered service is not rationally demonstrable.
The Federal Court of Justice referred the case back to the appellate court to clarify whether such an intention of the parties existed, and also to answer the previously unresolved question of whether the parties' agreement is void under Section 138 BGB due to immorality. In this context, it must not be overlooked that many individuals entering into such contracts are in difficult life situations or are gullible, inexperienced, or psychologically vulnerable. Therefore, in such cases, overly stringent requirements for a violation of public morals within the meaning of Section 138 (1) BGB should not be applied.
Judgment of the BGH of January 13, 2011 – III ZR 87/10
Lower Courts:
Stuttgart Regional Court – Judgment of October 9, 2009 – 19 O 101/09
Higher Regional Court of Stuttgart – Judgment of April 8, 2010 – 7 U 191/09
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2011
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
