Agreements, in which actions brought by a consumer from the doorstep of a § 29c para. 1 Set 1 ZPO deviating jurisdiction is determined, Pursuant to § 29c para. 3 ZPO inadmissible.
BGH JUDGMENT III ZR 474/13 from 30. October 2014
ZPO § 29c para. 1 Set 1, Abs. 3
Agreements, in which actions brought by a consumer from a Haustürgeschäf th of § 29c para. 1 Set 1 ZPO deviating jurisdiction is determined, Pursuant to § 29c para. 3 ZPO inadmissible.
BGH, Judgment of 30. October 2014 – III ZR 474/13 – OLG Naumburg
The III. Civil Division of the Federal Court from the hearing 30. October 2014 by the Vice President of silt and the judges Seiter, Tombrink, Dr. Remmert and rider
On appeal by the plaintiff, the judgment is the 5. Civil Division of the Court of Naumburg 2. October 2013 canceled.
The case is for a new hearing and decision, including costs of Revisionsrechtszugs, referred back to the Berufungsge-report.
As of right
The applicant claims against the resident of the Principality of Liechtenstein loading complained claims for rescission of asset management agreements. The parties disagree as to the jurisdiction of the German court availability.
The plaintiff signed on 19. April 2007 one of the D. AG-oriented management contract and a service order, with whom he the defendant the conclusion of an asset management agreement with a term of 30 Offered years. As evidenced by the contract offer the applicant should-
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ger a one-time investment of 3.600 € plus a premium of 180 € as well as over a period of 30 Years a monthly investment of each 100 € or VAT-lich a premium of 5 % do. According to section VI 3 the contractual terms of the service contract if the contract subject to Liechtenstein law. The place of performance and jurisdiction specific regulation V. in Liechten-stein. The defendant should be free, to assert their rights also claims the plaintiff's domicile or any other court of competent jurisdiction.
By letter of 17. More 2007 informed the defendant to the plaintiff, the An-acceptance of the order placed by him. The letter concludes with the one-scanned signature of a member of the defendant.
With letter of attorney 11. July 2011 said the plaintiff against the defendant, the termination of the participation agreement. He also explained the withdrawal of contesting his complaint to conclude the contract Wil-lens declaration.
In its complaint, the plaintiff seeks repayment by him vomit-th time investment and four monthly installments, all in all 4.200 €, the hard Stel-lung, that the defendant from the service contract from 19. April 2007 entitled to no-claims against him, as well as cost-reimbursement Advocate extrajudicial. He took the view, the called of him Landgericht D. – in the district where the plaintiff is domiciled – has jurisdiction to decide the dispute. The jurisdiction agreement had not been reached effectively, because the required writing was not ge-preserving. The jurisdiction of the court follows from § 29c ZPO. The reference to the legal action in Liechtenstein he would entge-gen to the requirement of good faith disadvantaged inappropriate.
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The defendant took the view, the action is inadmissible, because the parties agreed to the jurisdiction of the courts of the Principality of Liechtenstein-stone.
The district court dismissed the action as inadmissible. The Oberlan-Higher Regional Court rejected the appeal by the plaintiff. Against the approved by the Court of Appeal revision of the plaintiff directed.
Reasons for the Decision:
The review of the applicant's success. They lead to the repeal of the Be-rufungsurteils and to remit the case to the Court of Appeal.
According to the appellate court, the district court dismissed the action as inadmissible rightly, because its international jurisdiction was not given. The question of jurisdiction is governed by German civil procedure law. Neither the jurisdiction of the tort pursuant to § 32 Code of Civil Procedure nor the jurisdiction of doorstep selling under § 29c ZPO is given. A claim in tort, the jurisdiction under § 32 Code of Civil Procedure would establish, the applicant has not been shown. One of jurisdiction of the court under § 29c para. 1 Set 1 ZPO stand between the Parties in accordance with § 38 Abs. 2 ZPO taken against jurisdiction Club agreement. In § 38 Abs. 2 Set 2 Code of Civil Procedure prescribed written
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Form had been observed. The only scanned signature of Mitar-ployee of the defendants in the letter of 17. More 2007 does not preclude the, because of the letter, the defendant was undoubtedly identifiable as the author of the votes against the applicant declaration of intent.
The jurisdiction agreement shall not stand § 40 Abs. 2 Set 1 No.. 2 ZPO against, because in an action by the consumer under § 29c ZPO is given no out-of-place of jurisdiction. It can remain open, whether conclusion was made in a doorstep. An agreement on jurisdiction in actions brought by the consumer, as it was adopted by the parties in the present case, going through § 29c ZPO not be barred.
Evidence of a substantive invalidity of the Court was agreement were not visible. Inadequate Benachteili-supply of the applicant in accordance with § 307 Abs. 1 BGB not lie before. A violation of the domestic public policy was not given. The applicant is not made without rights, because he could sue in the nearby Principality of Liechtenstein.
The jurisdiction agreement is not therefore ineffective, because the service contract is invalid. According to both the in section VI 3 of the service contract made and in accordance with Article. 27 Abs. 1 Set 1 BGB aF effective agreement as well as in application of Article. 28 BGB aF is Liechtenstei-African law applicable. The validity of the choice of law also am not kind. 29 BGB aF counter. While there were a Verbraucherver-contract. However, it lacked in the manner of. 29 Abs. 1 to 3 BGB aF required domestic connection, so that the applicability of German-Verbraucherschutzbe provisions under Article. 29 Abs. 4 Set 1 No.. 2 BGB aF is excluded.
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The benefits due the plaintiff had exclusively abroad-he must be brought. The jurisdiction agreement is effective after the gewähl th Liechtenstein law.
The question of jurisdiction by the appellate court, without prejudice to the provisions of § 545 Abs. 2 ZPO revisionsge-trial investigation is not excluded (vgl. Senate judgment of 28. November 2002 – III ZR 102/02, BGHZ 153, 82, 84 ff), can not be accepted at a crucial point.
1. The disputed agreement conferring jurisdiction under § 29c para. 3 ZPO not allowed.
According to § 29c para. 1 Set 1 Code of Civil Procedure (in the factors relevant to the dispute, as published on 5. December 2005, BGBl. I S. 3202) for claims arising out of doorstep selling within the meaning of § 312 BGB (in the version published on 2. January 2002, BGBl. I 42) the court has jurisdiction, in whose district the consumer at the time the action is filed his residence, has, in the absence of such an habitual residence (now: special-which jurisdiction for lawsuits from off-premises CLOSED-nected contracts; see § 29c each paragraph. 1 Set 1 ZPO § 312b BGB and in since 13. June 2014 current version of the law implementing the Consumer Rights Directive and amending the law regulating the housing agency from 20. September 2013, BGBl. I S. 3642). The Beru-fung court has questioned, whether conclusion in a doorstep
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is carried out, expressly left open. Revision Legally, therefore, is a door step and therefore the applicability of § 29c para. 1 Set 1 ZPO aF assumed.
In an action by a consumer from a door step according to § 29c para. 1 Set 1 ZPO aF is – contrary to actions against the consumer pursuant to § 29c para. 1 Set 2 Code of Civil Procedure – if not exclusive jurisdiction (BGH, Decision of 7. January 2003 – AZR X 362/02, World Cup 2003, 605, 606). Therefore, the disputed agreement conferring jurisdiction is not § 40 Abs. 2 Set 1 No.. 2 ZPO against (vgl. in a parallel case, KG, BKR 2014, 390, 391 f).
The place of jurisdiction of the consumer in § 29c para. 1 Set 1 ZPO designed as a special jurisdiction, to the consumer, while preserving the possibility, to sue at the general jurisdiction of the other Contracting Party-and at the place (vgl. Draft Law on the modernization of the law of obligations, BT-Drucks. 14/6040 S. 278). The Ausgestal Maintenance of § 29c para. 1 Set 1 Code of Civil Procedure as a special jurisdiction does not imply, that court agreements, by this jurisdiction is derogated, may be legally not limited or excluded. The latter is done in § 29c para. 3 Code of Civil Procedure. Under this provision, the disputed jurisdiction clause is invalid.
a) According to § 29c para. 3 ZPO § 29c of a paragraph. 1 ZPO other agreement made for the case, that the consumer after the conclusion of his living- or residence abroad postponed or residential- and residence at the time the action is not known. The provision thus allows for the case referred to by it notwithstanding § 29c para. 1
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Set 2 in conjunction with § 40 Abs. 2 Set 1 No.. 2 ZPO the conclusion of an agreement conferring jurisdiction (BeckOK / Toussaint, Code of Civil Procedure, § 29c [Stand: 15.06.2014] Rn. 19; Musielak / Heinrich, Code of Civil Procedure, 11. Ed, § 29c Rn. 13; HP-ZPO / Bendtsen, 5. Ed, § 29c Rn. 8; Inch / full Kommer, Code of Civil Procedure, 30. Ed, § 29c Rn. 11).
b) This reflects the normative content of § 29c para exhausted. 3 ZPO not ever-but. Rather, it is through the provision beyond the mentioned there took off all of § 29c para. 1 Code of Civil Procedure, that is, by – as in the present – § 29c Abs. 1 Set 1 ZPO excluded other agreement (OLG Bamberg, Judgment of 12. July 2013 – 6 You 8/13, Page 6 f, nv; OLG Stuttgart, Be resolution dated 5. July 2012 – 5 You 73/12, Page 3, nv; Baumbach / Lauterbach / Albers / Hartmann, Code of Civil Procedure, 72. Ed, § 29c Rn. 7; Teuber, The international Zu-resistance in consumer disputes, 2003, Page 137 f; Kleinknecht, The consumer protection jurisdictions in German and European civil procedure law, 2007, Page 190).
aa) This is already apparent from the wording of § 29c para. 3 Code of Civil Procedure, the whole is fully on sales 1 § 29c of the ZPO and not only on the set 2 refers (OLG Bamberg op; OLG Stutt gart-op; Teuber op). Although concern in § 29c para. 3 CCP-controlled case-constellations, where a different agreement is exceptionally casual, Lawsuits against the consumers and thus § 29c para. 1 Set 2 Code of Civil Procedure. It does not follow, however,, that § 29c para. 3 ZPO § 29c para total only. 1 Set 2 Code of Civil Procedure applies.
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bb) Also genesis and purpose of the standard-law-chen for an interpretation of § 29c para. 3 Code of Civil Procedure to the effect, that Court-fire agreements, the actions brought by the consumer of § 29c para. 1 Set 1 ZPO differ, are not allowed.
(1) The of the Act to modernize the law of obligations 26. November 2001 (BGBl. I S. 3138) inserted provisions of § 29c ZPO is the place of § 7 the Law on the cancellation of doorstep selling and similar transactions (HWiG) from 16. January 1986 (BGBl. I S. 122) Gaiter-ten (BT-Drucks. 14/6040 cit). That § 7 Abs. 1 HWiG was the court for Kla-gen from the doorstep exclusive jurisdiction, in whose district the customer at the time the action is filed his residence, had, in the absence of a sol-chen habitual residence. In proceedings of the consumer therefore was an exclusive venue, under § 40 Abs. 2 Set 1 No.. 2 Code of Civil Procedure could not be derogated. The purpose of the exclusive Ge report object according to § 7 Abs. 1 HWiG it was, the consumer to be protected before-zen, the need to assert his rights in the way of the action is brought in a distant court that may (Draft law on the withdrawal of doorstep selling and similar transactions, BT-Drucks. 10/2876 S. 15).
(2) Due to the amendment of § 7 Abs. 1 HWiG in § 29c Abs. 1 Consumer Code of Civil Procedure shall be th in the same manner as previously protected and additional-lich given the opportunity, to sue at the general jurisdiction of the other Contracting Party-and at the place (BT-Drucks. 14/6040 cit). By thus expressly intended by the legislature to maintain the level of protection-vious, however, it would not be compatible, now if the Neufas-sung – contrary to § 7 Abs. 1 HWiG – the contractual partner of the United-
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sumer would open the possibility, by Gerichtsstandsvereinba-rung the consumer the jurisdiction of § 29c para. 1 Set 1 To take ZPO and force him in this way to, the need to assert his rights to an un-certain circumstances distant court that (OLG Bamberg op; Teuber op). As a result, the protection of the consumer-chers would not expanded in relation to previous legal, but turned-limits.
The purpose of this original special legal regime exists even after their insertion into the Code of Civil Procedure unchanged since-rin, to prevent the consumer in the process case before, the need to assert his rights in a possibly distant court that (BGH, Be resolution dated 7. January 2003 – AZR X 362/02, World Cup 2003, 605, 606). This fort-existing purpose and intended by the legislature maintaining the level of protection of § 7 Abs. 1 HWiG simultaneous opening addi-cher jurisdiction only by an interpretation of § 29 Abs. 3 Code of Civil Procedure provides to the effect, that the previous, by § 7 Abs. 1 HWiG opens up th Jurisdiction is retained for the consumer and not continue dero-alternates may be, of § 29c para. 1 Set 1 ZPO different agreements are therefore not permitted.
cc) The interpretation of § 29c para. 3 Code of Civil Procedure in the above sense is in accordance with Article. 16 Abs. 1 Regulation (EG) No.. 44/2001 from 22. Dezem-ber 2000 Council on jurisdiction and the recognition and enforcement of judgments in civil- and commercial matters (OJ. EG 2001 No.. L 12 S. 1; hereinafter: EUGVVO; vgl. this Gansauge, Internatio nal-jurisdiction and applicable law for consumer contracts through inter-net, 2004, Page 85). Thereafter, the application of a load against the
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be other party either in the courts of the Member State erho-ben, in which that party is domiciled, or in the courts of the place, where the consumer is domiciled. This requirement may by type. 17 EuGVVO only in certain there – vorlie-quietly not relevant – Be waived cases. In particular court agreements can not be in the main contract set-accepted principle (Zöller / Geimer, Code of Civil Procedure, 30. Ed, Art. 17 EUGVVO Rn. 1). Although – as the Court of Appeal has correctly recognized – the provisions of the Brussels I Regulation presently not directly applicable. Evidence, that the German legislature remain in the design of national consumer-civil procedural law for lying outside the territorial scope of the Brussels I Regulation facts behind the level of protection wanted th, but are not apparent.
2. The Court of Appeal, the content of the regulation § 29c para. 3 Code of Civil Procedure has not been discussed in detail, is therefore – based on a revision legally sheltering doorstep selling (See the notes on 1) – in error by a lack of on-ground the disputed jurisdiction clause inter-national jurisdiction of the District Court by the plaintiff ausgegan-gen. The judgment under appeal should therefore be repealed (§ 562 Abs. 1 Code of Civil Procedure). The matter is remanded to the Court of Appeal (§ 563 Abs. 1 Code of Civil Procedure), to give him the opportunity, on the basis of the applicant lecture (to examine the jurisdiction under § 29c para. 1 Set 1 Code of Civil Procedure on the basis of the plaintiffs brought forward cf.. MüKoZPO / Patzina, 4. Ed, § 29c Rn. 25; Inch / full Kommer supra § 29c Rn. 9; Musielak / Heinrich AAO § 29c Rn. 14) the factual advance-
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ments of § 29c para. 1 Set 1 to clarify aF ZPO and, if this should be affirmative-hen, to decide on the merits of the action.
Schlick Seiter Tombrink
LG Dessau, Decision of 25.03.2013 – 4 The 42/12 –
OLG Naumburg, Decision of 02.10.2013 – 5 You 78/13 –