Those who disregard the requirements for information on the right of withdrawal sometimes lose a lot of money! The withdrawal period then does not start, the right of withdrawal does not expire and there is no compensation for lost value either.
Can an incorrect cancellation policy cost money?
The dispute between the parties was caused by details on the right of withdrawal in an off-premises brokerage contract. The brokerage contract contained the following pre-formulated declarations:
I require you to start providing the service before the end of the withdrawal period (§ 357 para. 8 BGB).
I am aware that I lose my right of revocation (§ 356 para. 4 BGB) if you have already provided the service in full before the end of the revocation period.
A model cancellation form was not attached to the brokerage contract. The broker's contractual partners received a copy of the brokerage contract, the revocation instructions and the model revocation form only well after the conclusion of the contract. The broker's contractual partners revoked the brokerage contract months after the conclusion of the contract. Due to a successful mediation of prospective buyers in the meantime, the broker demanded his commission.
In the final instance, the broker failed with his claim before the Federal Supreme Court.
When does a broker not receive commission?
The BGH found that the broker's claim fails in three places:
Did you receive the cancellation policy AND the model cancellation form?
The revocation period had not yet expired at the time of the declaration of revocation, or, to be more precise, the revocation period did not even run! According to § 312 para. 1 p. 1 BGB in conjunction with. Art. 246a § 4 para. 2 p. 1 EGBGB the trader must provide the consumer with the information according to Art. 246a § 1 to 3 EGBGB on paper or on another durable medium. This information includes the information on withdrawal and the model withdrawal form pursuant to Art. 246a § 1 (2) p. 1 No. 1 EGBGB.
The broker did not fulfil this duty to inform. The broker did not hand out the revocation instructions and the model revocation form to the clients. It is also not sufficient if the customer can only view the required information on site.
All information requirements fulfilled?
The BGH found that the right of withdrawal had not expired under section 356(4) sentence 1 BGB.
According to Section 356 (4) sentence 1 of the German Civil Code (BGB), the right of withdrawal expires if the trader has provided the service in full and has only started to provide the service after the consumer has given his or her express consent to this and at the same time confirmed his or her knowledge that he or she loses his or her right of withdrawal upon full performance of the contract by the trader.
However, the expiry of the right of withdrawal under section 356(4) sentence 1 BGB requires in any case that the trader has fulfilled its information obligations under section 312d(1) BGB in conjunction with Art. 246a(4)(2) sentence 1 EGBGB. Art. 246a § 4 para. 2 sentence 1 EGBGB and has provided the consumer with the required information. This is lacking. The broker did not hand over the cancellation instructions and the model cancellation form to the customers.
When can a broker claim compensation for lost value?
The BGH also rejected the broker's claim for compensation for value under section 357(8) BGB. The claim for compensation according to § 357 (8) BGB requires that the trader has provided the consumer with the required information according to Art. 246a § 1 (2) sentence 1 no. 1 EGBGB on paper or on a durable medium. This is lacking (once again). The broker did not hand over the cancellation instructions and the model cancellation form to the customers.
What lessons do you have to learn from the BGH's decision?
The decision of the BGH directly concerned only a claim for brokerage commission. However, the regulations under consideration also and above all affect contracts in online shops. In this respect, virtually all online traders are affected.
Once again it becomes clear that online traders must not underestimate the high formal requirements of the information duties of the BGB and the EGBGB. "Self-made" almost always leads to problems.
If you have a "creative" design proposal with regard to the information obligations of the BGB and the EGBGB, have this design proposal checked by a lawyer before using it. We will be happy to help you.
Source: BGH, judgement of 26.11.2020, ref. no. I ZR 169/19
Previous instances: OLG Hamm, judgement of 12.08.2019, ref. no. 18 U 119/18
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GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and specialist in information technology law
