The plaintiff is a condominium owners' association, the defendant an energy service company. The defendant concluded a pre-formulated heat supply contract with the plaintiff's legal predecessor on 17 September 2002. The contract stipulates the validity of the Ordinance on General Terms and Conditions for the Supply of District Heating (AVBFernwärmeV). Furthermore, the contract provides that the boiler room and the heating station in which the heat is generated are provided by the customer and leased by the defendant for 1 €/year and that the customer has to bear the costs of structural maintenance and any replacement investments that may become necessary in the future. The term of the contract is agreed to be 10 years. The plaintiff considers this term agreement to be invalid and terminated the contract on 31 August 2007. The district court granted the action for a declaration of termination of the contract on 31 August 2007 with the proviso that the contract ends on 31 December 2007. On appeal by the defendant, the court of appeal dismissed the action.
The appeal of the condominium owners' association against this was successful. The VIII. Civil Senate of the Federal Court of Justice ruled that the term agreement contained in the contract was invalid. Contrary to the opinion of the Court of Appeal, the admissibility of the ten-year contractual commitment does not result from § 32 para. 1 AVBFernwärmeV, because the contractual relationship does not concern the supply of district heating. According to the case law of the Federal Court of Justice, the decisive factor for the term district heating, which is not defined by law, is that heat is supplied from a heating system not owned by the building owner. This is also in line with the opinion of the legislator, who considers the contract term of up to 10 years, which is permissible under section 32(1) AVBFernwärmeV, to be justified because the supply of district heating forces the supplier to make high investments. This was not the case in the dispute because the defendant only leased the plant belonging to the plaintiff and to be maintained by it at a symbolic rent of 1 €/year.
The Federal Court of Justice further ruled that the term clause did not stand up to the content review of section 307 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), as there was no factual justification for the ten-year contractual commitment due to the lack of high investment and maintenance costs on the part of the defendant. Maintaining the clause with a shorter term was out of the question because of the prohibition of a reduction of unreasonable general terms and conditions.
Judgment of the BGH of 21 December 2011 - VIII ZR 262/09
Lower courts:
LG Berlin - Judgment of 29 April 2008 - 22 O 473/07;
KG Berlin - Judgment of 1 September 2009 - 27 U 76/08;
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
