The VII. Civil Senate of the Federal Court of Justice, which is responsible among other things for the law on contracts for work and services, has ruled that a clause in the general terms and conditions of the supplier of a kitchen to be installed by the supplier
"The purchase price shall be paid without deduction no later than upon delivery of the purchased items."
is invalid. A subsequent agreement by which the supplier grants the purchaser the right to retain a partial amount until the kitchen has been installed free of defects does not in principle change the invalidity of the clause.
The clause does not lose its character as a general business condition subject to content control pursuant to sections 305 et seq. of the German Civil Code merely because it is subsequently amended by the parties. Rather, the subsequent amendment must be made in a way that justifies treating it as an individual agreement made from the outset. This is not the case if, even after the conclusion of the contract, the user has not granted the contracting party any freedom of design and has not made the core content of the clause, which is foreign to the law, available for disposition.
The plaintiff commissioned the defendant with the planning, manufacture and installation of a kitchen in its residential building at a price of € 23,800. The contract was based on the defendant's General Terms and Conditions, which obliged the plaintiff to pay the entire remuneration before or upon delivery. After conclusion of the contract and before delivery, the parties agreed that the plaintiff, in deviation from the terms and conditions, had to pay only € 21,300 in advance and was entitled to retain € 2,500 until the kitchen had been installed free of defects. The defendant did not install the kitchen properly, which is why the plaintiff retained € 5,500. With reference to its general terms and conditions, the defendant was of the opinion that it was only obliged to remedy the defects if the remuneration was paid in advance up to the agreed € 2,500. Due to the refusal to remedy the defects, the plaintiff demands compensation from the defendant, which is directed towards rescission of the contract and reimbursement of additional costs. The defendant counterclaims for the outstanding remuneration.
The action was predominantly successful in the lower courts; the counterclaim was dismissed by the lower courts. The Federal Supreme Court confirmed the decision of the Court of Appeal.
The Federal Court of Justice stated that the obligation to pay the entire remuneration in advance agreed in the defendant's general terms and conditions was incompatible with essential basic ideas of the law and therefore invalid. The clause obliges the defendant's customers to pay the full remuneration before the kitchen is installed. In this way, they lose all leverage if the installation is defective. The subsequent agreement does not change this assessment, since the defendant did not make the core content of its invalid general business condition - the obligation to make advance payment - available for disposition and did not grant the plaintiff any freedom of design in this respect. The granting of a right of retention of only approx. 10% of the remuneration does not sufficiently take into account the plaintiff's legitimate interests. The defendant was therefore not allowed to make the rectification of defects dependent on further advance performance. It is therefore liable for damages.
Judgment of the BGH of March 7, 2013 - VII ZR 162/12
Previous instances:
OLG Karlsruhe, judgment of May 3, 2012 - 9 U 74/11
Constance Regional Court, judgment of March 25, 2011 - 5 O 332/10
Source: Press release of the BGH
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
