The plaintiff used general terms and conditions in its online store. Among other things, it wanted to exclude compensation for legal fees in the event of a warning without prior contact.
The plaintiff sent a competitor a warning letter and demanded reimbursement of legal fees, among other things. In its ruling of January 26, 2016 (case no. I-20 U 52/15), the Düsseldorf Higher Regional Court ruled that this was unjustified. According to Section 242 of the German Civil Code (BGB), it was prevented from demanding reimbursement of legal fees for pre-litigation warnings.
Avoid costly legal warnings due to general terms and conditions
With its clause
“No warning without prior contact! Should the content or presentation of these pages violate the rights of third parties or statutory provisions, we ask for a corresponding message without cost note. (…) We will fully reject any costs incurred by you without prior contact and, if necessary, file a counterclaim for violation of the aforementioned provisions.”
the plaintiff had the intention of being able to remedy possible infringements of competition law outside of legal institutions at a lower cost. In particular, laypersons could forego legal assistance in the event of an infringement on the plaintiff’s online store page and thus cut off possible claims.
Contradictory behavior of the plaintiff
The Higher Regional Court of Düsseldorf saw no reason to grant the plaintiff a claim for warning costs due to this approach. This demand was in contradiction to the statement on its website.
If, on the one hand, it wishes to exclude claims for legal fees relating to warnings without prior contact, it cannot, on the other hand, demand payment for the same reason in its favor.
Ineffectiveness of the GTC cannot be used to advantage
The invalidity of the clause invoked by the court of the previous instance does not change the decision of the Düsseldorf Higher Regional Court. Rather, the court states that the user of general terms and conditions cannot invoke their invalidity if he can derive an advantage from them in a specific situation. This behavior cannot be reconciled with the principle of good faith in accordance with Section 242 BGB.
OLG Hamm and OLG Düsseldorf of the same opinion
The Higher Regional Court of Hamm also justified this in the same way in its ruling of January 31, 2012 (case no. I-4 U 169/11). Although this argument was questioned by the Higher Regional Court of Celle in its ruling of March 28, 2013 (case no. 13 U 19/13) due to its dogmatic derivation, webshop operators should nevertheless exercise caution with regard to such a clause. The decision of the Higher Regional Court of Celle has already had two votes against it since the recent Düsseldorf ruling.