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 certain liability limitation clauses commonly used in the textile cleaning trade are invalid.
The defendant textile cleaning association drafted so-called "Delivery Conditions of the German Textile Cleaning Trade" (hereinafter: Conditions), which constitute a recommendation to textile cleaning companies for the formulation or use of General Terms and Conditions (AGB). The defendant notified these conditions to the Federal Cartel Office as a so-called "recommendation on conditions" and they were published in the Official Gazette.
No. 5 of the Terms and Conditions contains the following provisions regarding the limit of liability:
"The textile cleaner is liable for the loss of the cleaning goods unlimited in the amount of the current value. For processing damage, the textile cleaner is liable only in the case of intent or gross negligence unlimited in the amount of the current value. Otherwise, the liability is limited to 15 times the processing price.
Attention:
Our liability may be limited to 15 times the processing price (see No. 5 GTC). However, you can agree unlimited liability in the amount of the current value, e.g. by taking out insurance."
The plaintiff Federal Association of Consumer Centres and Consumer Associations considers these provisions to be invalid pursuant to §§ 307 et seq. BGB (German Civil Code) and therefore claims against the defendant pursuant to § 1 of the German Injunctions Act (Unterlassungsklagengesetz - UKlaG) for the recommendation of these terms and conditions for inclusion in contracts for the cleaning of textiles with consumers.
The District Court and the Court of Appeal upheld the claim.
The Federal Supreme Court rejected the appeal of the textile cleaning association. In its reasoning, it stated that the first two sentences of the clause were invalid due to a violation of section 309 no. 7b of the German Civil Code (BGB) because they limited the liability of the cleaning company for damage to the cleaning goods caused intentionally or by gross negligence to the current value. This term can be given the meaning that the damage, in deviation from the statutory provision, is not compensated in the full amount of the replacement value.
The clause limiting the amount of liability to 15 times the cleaning price in the case of slightly negligent damage to the goods to be cleaned was unreasonably disadvantageous to the customer, contrary to the principles of good faith, and was invalid under section 307(1) sentence 1 BGB. The cleaning price was not a suitable criterion for limiting liability because it bore no relation to the possible amount of damage. The possibility of taking out an insurance policy to be paid by the customer did not constitute sufficient compensation because the clause was not able to ensure that the cleaner would expressly inform the customer of this verbally in every case required.
Judgment of the BGH of 4 July 2013 - VII ZR 249/12
Lower courts:
Cologne Regional Court - 26 O 70/11 - Judgment of February 8, 2012
Cologne Higher Regional Court - 6 U 54/12 - Judgment of August 10, 2012
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
