Only if the revocation instruction for a consumer loan agreement corresponds to the official model does the fiction apply that it complies with the legal requirements. This is of decisive importance for the start of the revocation period.
Does a revocation instruction have to contain subheadings?
The parties were connected via a purchase contract for a used passenger car. Part of the purchase price was to be financed by a loan on the basis of an additionally concluded loan agreement. The loan agreement was accompanied by a revocation instruction. This contained a reference to all mandatory information according to § 492 para. 2 BGB. Both sub-headings "Particularities in the case of additional contracts" and "Objections in the case of linked contracts", which are mandatory according to sections 2, 5 and 5g of the model in Annex 7 to Article 247 § 6 (2) of the Introductory Act to the Introductory Act to the German Civil Code (EGBGB), were missing from the revocation instruction.
In the final instance, the parties disputed, among other things, the question of whether the buyer's revocation was timely or not.
When is a revocation instruction effective?
As a "side issue", the BGH found that the reference to "all mandatory information pursuant to section 492(2) BGB" is not clear and comprehensible within the meaning of Article 247 § 6(1) EGBGB. This legal issue has already been dealt with by the ECJ in its decision of 26.03.2020 (Case C-99/19). This shows that this topic is still topical.
Why does a revocation instruction have to have subheadings?
The BGH found that the two mandatory sub-headings according to numbers 2, 5 and 5g of the model in Annex 7 to Art. 247 § 6 (2) EGBGB were missing. As a result, the revocation instruction no longer complies with the statutory requirements. As a result, the information on the right of withdrawal no longer meets the requirements for effective information of the consumer pursuant to Article 247 § 6 (2), sentences 1 and 2, Introductory Act to the Introductory Act to the German Civil Code (EGBGB). This in turn leads to the revocation period not starting to run according to § 492 para. 6 BGB.
When do I have to change my cancellation policy?
The decision initially only concerns the revocation instruction for consumer loan agreements. Only in this case is it possible to insert passages with subheadings.
However, the official model cancellation policy for distance contracts in online trade also contains subheadings. If these are missing or omitted, the question could arise whether the model cancellation policy then still meets the legal requirements. If it does not, the withdrawal period does not start to run according to Section 356 (3) sentence 1 BGB.
Therefore, our urgent recommendation is: Do not interfere with the model cancellation policy. Alternatively, please leave the subject of revocation and revocation instructions in the hands of your legal advisor.
Source: BGH, judgement of 10.11.2020
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Julius Oberste-Dommes LL.M. (Information Law)
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