The VIII. The Federal Supreme Court (BGH) had to rule on the validity of a right of withdrawal contained in the general terms and conditions of a leasing company.
The plaintiff leasing company asserted a claim against the defendant arising from a guarantee which the defendant had provided for payment obligations of the meanwhile insolvent lessee, of which he was the managing director. The object of the leasing contract concluded between the plaintiff and the lessee on 23 June / 7 July 2005 was an industry software to be adapted and implemented by the supplier with a total acquisition value of € 400,000. The latest completion date for the software was agreed to be 30 June 2006. The term of the contract was to begin only with the acceptance of the leasing object by the lessee. Item 12. of the "General Terms and Conditions Bundle Lease" (hereinafter: GTC) attached to the leasing contract states under the heading "Failure of the project":
"12.1 If the object (system solution or independently usable system modules agreed in the contract) has not been properly created and accepted by the customer by the agreed latest completion date, or has previously failed for whatever reason, the leasing company shall be entitled to withdraw from the contract. (...)
12.2 In the event of withdrawal from the contract in accordance with clause 12.1, the Leasing Company shall be entitled to offer to the Customer at the cost price of the Leasing Company all deliveries and services of suppliers provided up to the time of withdrawal which are not included in an expansion stage accepted by the Customer. To this end, the customer already makes a binding offer to purchase from the leasing company hardware and software supplied at that time at cost price, excluding any liability on the part of the leasing company for material defects and defects of title in the condition in which it is then (purchase offer) and to reimburse the leasing company for payments made to service providers in return for the transfer of any existing rights to services rendered (reimbursement offer). The refund offer applies accordingly to advance payments (down payments) made by the leasing company for deliveries and services. (...)"
On 8 July 2005 and 10 August 2005, the supplier issued two invoices to the plaintiff for licences provided and for project management and concept development totalling € 96,384.11 with VAT. On 8 June 2006, the lessee filed for insolvency proceedings, which were opened on 30 October 2006. By letter of 3 July 2006 addressed to the lessee, the plaintiff declared its withdrawal from the leasing contract on the grounds that the latest completion date had passed without acceptance having taken place. At the same time, the plaintiff made a claim against the defendant under his guarantee.
The Regional Court dismissed the action for payment in the amount of € 96,384.11. The court of appeal dismissed the plaintiff's appeal against the district court's decision. The plaintiff contests this with its appeal, which was allowed by the court of appeal and with which it continues to pursue its claim for payment.
The Federal Court of Justice ruled that the Court of Appeal was correct in denying a claim by the plaintiff for reimbursement of the payments made to the supplier and thus a liability of the defendant under the guarantee (section 765 (1) BGB) and correctly assumed that the right of withdrawal granted to the plaintiff in its general terms and conditions and the lessee's purchase and reimbursement offer were invalid under section 307 BGB.
The right to withdraw from the contract stipulated in clause 12.1 sentence 1 of the GTC in the event of improper construction and acceptance of the leased object by the contractually agreed latest completion date is already invalid pursuant to section 307 para. 1 sentence 1, section 310 para. 1 of the German Civil Code. Even in commercial legal transactions, a contractually stipulated right to withdraw from the contract must be based on an objectively justified reason. An objective reason may be that the lessor, who pre-finances the creation of the leased object over a longer period of time but does not receive his consideration until the beginning of the term of the lease, has a legitimate interest in bringing about a final clarification at a certain point in time. However, this does not justify a clause, even in business dealings, that allows withdrawal even in the event that the lessor himself or the supplier acting as his vicarious agent (section 278 sentence 1 of the German Civil Code) within the framework of the fulfilment of the obligation to transfer use incumbent upon him is responsible for the delay in the creation and acceptance of the leased asset beyond the contractually agreed point in time.
Furthermore, the provision in clause 12.2 sentences to 5 of the GTCB, which deviates from the basic ideas of tenancy law in connection with the statutory regulation of the consequences of withdrawal in §§ 346 ff. BGB to the detriment of the lessee is also invalid pursuant to § 307 para. 2 no. 1 BGB, so that the plaintiff is not entitled to the payment claim based on it. It can be left open whether the provision in the plaintiff's GTC regarding the consequences of withdrawal would be effective if it only applied in the event that the lessee was responsible for the delay in the construction and acceptance of the leased asset beyond the contractually agreed latest completion date. In any case, the provision is unreasonable and therefore ineffective because it also covers cases where the lessor himself or the supplier acting as his vicarious agent (§ 278 sentence 1 BGB) within the framework of the fulfilment of his obligation to transfer use is responsible for the delayed construction and acceptance of the leased asset. Furthermore, the unilateral assignment of the risk of the successful construction of the leased asset to the lessee disregards the position of the lessor as owner and holder of the assets of the leased asset with its obligation to transfer use derived therefrom, which the lessor cannot escape, in particular with regard to the risk of the supplier's insolvency, as emphasised by the Federal Supreme Court in its consistent case law.
Judgment of the BGH of 29 October 2008 - VIII ZR 258/07 Previous instances: LG Bochum - Judgment of 5 December 2006 - 18 O 227/06; OLG Hamm - Judgment of 3 August 2007 - 12 U 158/06
Source: Press release of the press office of the Federal Supreme Court (BGH) No. 200/2008 of 29.10.2008
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
