The III Civil Senate of the Federal Court of Justice (BGH) ruled today that the owner of a DSL connection cannot terminate the contract with his telecommunications company before the expiry of the agreed period if he moves to a place where DSL-capable lines have not yet been laid.
In the case in dispute, the plaintiff had concluded a contract with the defendant company in May 2007 for the provision of a DSL connection with which he received access to the internet, including internet telephony, at his place of residence at the time. The contract was concluded for a period of two years. In November 2007, the plaintiff moved to another municipality in the same district. There are no DSL-capable lines there, so the defendant was not able to install a DSL connection at the new place of residence. After informing the plaintiff of this in writing, the plaintiff declared the "special termination" of the contract.
Notwithstanding this, the defendant continued to claim the agreed monthly basic fee. In his action, the plaintiff sought a declaration that the contract concluded between the parties had been effectively terminated by the notice of termination and that he was not obliged to pay the monthly amounts claimed.
The action remained unsuccessful in the lower courts. The Federal Supreme Court confirmed the appeal ruling. The plaintiff did not have good cause to terminate the contract pursuant to section 626 (1) or section 314 (1) sentence 2 BGB. In principle, such a reason does not exist if it is derived from events that are beyond the influence of the other contracting party and originate from the sphere of interest of the terminating party. The customer who concludes a long-term contract for the provision of a service generally bears the risk of no longer being able to use it due to a change in his personal circumstances. Accordingly, a move, for example for professional or family reasons, does not in principle constitute an important reason for termination. In addition, in the case in dispute, the comparatively long term of the DSL connection contract was the plaintiff's economic "consideration" for a low monthly basic price and a conclusion of the contract with a shorter term or monthly terminability would also have been possible at higher costs. In addition, the investments made by the company, which in particular provided the customer with the necessary technical equipment (router, WLAN stick), were only amortised within the second year of the contract.
Judgment of the Federal Court of Justice of November 11, 2010 - III ZR 57/10
Previous instances:
AG Montabaur - Judgment of October 2, 2009 - 15 C 443/08
Koblenz Regional Court - Judgment of March 3, 2010 - 12 S 216/09
(1) The employment relationship may be terminated by either party for good cause without observing a notice period if there are facts on the basis of which the terminating party cannot reasonably be expected to continue the employment relationship until the expiry of the notice period or until the agreed termination of the employment relationship, taking into account all circumstances of the individual case and weighing the interests of both parties to the contract.
(2) Notice of termination may only be given within two weeks. The period begins at the time when the party entitled to terminate becomes aware of the facts relevant to the termination. The party giving notice of termination must immediately inform the other party in writing of the reason for termination upon request.
§ Section 314 BGB reads (as of 11.11.2010): Termination of continuing obligations for cause
(1) Either party to a contract may terminate a continuing obligation for good cause without notice. Good cause shall be deemed to exist if the terminating party, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the expiry of a notice period.
(2) If the good cause consists of the breach of an obligation under the contract, termination is only permissible after the unsuccessful expiry of a period set for remedial action or after an unsuccessful warning. § Section 323 (2) shall apply accordingly.
(3) The entitled person may only terminate the contract within a reasonable period of time after becoming aware of the reason for termination.
(4) The right to claim damages shall not be excluded by the termination.
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de
