The plaintiff is a consumer association registered in the list of qualified entities pursuant to Section 3 (1) Sentence 1 No. 1, Section 4 of the UKlaG. The defendant operates a fitness studio. Their pre-formulated membership agreements contain the following clause:
“The member grants Studio C. K. the authorization, revocable until further notice, to debit the monthly fee via direct debit, unless a bank transfer has been agreed upon.”
The plaintiff considers this provision invalid under Section 307 (1), (2) No. 1 of the German Civil Code (BGB), as, from the relevant customer perspective, the use of the term 'to debit' implies an obligation and consent to participate in the direct debit order procedure.
The lower courts deemed the clause unobjectionable and dismissed the action. The Third Civil Senate of the Federal Court of Justice upheld this legal opinion and rejected the plaintiff's appeal.
1. According to the jurisprudence of the Federal Court of Justice, the standardized obligation of a consumer to grant a direct debit authorization is generally permissible. An undue disadvantage to the user's contractual partners cannot be assumed, at least not when minor amounts are to be debited, or when larger amounts – as in the present case – are regularly collected at a constant, predetermined rate. It is crucial to consider that the direct debit authorization procedure offers significant rationalization effects for the user and payee, particularly organizational and accounting advantages, and is noticeably more cost-effective. For the consumer, this form of cashless payment is also advantageous because it relieves them of monitoring due dates and allows for a passive approach. Furthermore, the direct debit authorization is risk-free for them, as they can object to the debiting of their account by revocation.
In contrast, the direct debit order procedure (Abbuchungsverfahren) regularly disadvantages the customer unduly. This is because, with this second type of direct debit procedure, the customer issues an advance order to their bank (the paying agent) in the form of a (general) instruction to honor direct debits from the specified creditor. The bank consequently debits the account with the account holder's consent. Therefore, after the direct debit has been honored, the customer can no longer reverse the account debit, which means the direct debit order procedure carries significant risks for the drawee and thus cannot generally be effectively agreed upon in general terms and conditions.
2. In the opinion of the Federal Court of Justice, the clause used by the defendant, even considering the principle of the most customer-unfriendly interpretation applicable in association proceedings, is to be understood as referring only to the direct debit authorization procedure, meaning the clause does not contain an undue disadvantage within the meaning of Section 307 (1), (2) No. 1 of the German Civil Code (BGB). Crucial for the Senate was the use of the term 'Bankeinzug' (bank direct debit), familiar to customers in connection with the direct debit authorization procedure, and that all circumstances point only to this type of direct debit procedure, which is widely used and better known in practice. In this context, it was also of decisive importance that, from the consumer's perspective, only a corresponding – and in this respect conclusive – declaration of intent must be submitted to the user, whereas the direct debit order procedure explicitly requires a declaration of intent to be submitted to the customer's bank.
Judgment of the Federal Court of Justice (BGH) of May 29, 2008 – III ZR 330/07
Previous instances:
Karlsruhe Regional Court (LG Karlsruhe) - Judgment of May 23, 2005 - 10 O 274/05
Karlsruhe Higher Regional Court (OLG Karlsruhe) - Judgment of June 20, 2007 - 15 U 66/05
Source: Press Release No. 100/2008 from the Press Office of the Federal Court of Justice dated May 29, 2008, Herrenstraße 45 a, 76133 Karlsruhe, Telephone 07 21 – 159-5013, Telefax 07 21 – 159-5501, E-Mail: pressestelle@bgh.bund.de
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
