In its ruling of August 31, 2017, the BGH (case reference: VII ZR 308/16) ruled that the agreement of a contractual penalty of EUR 2,500 for each intentional breach of contract for so-called “Schlemmerblocks” is invalid. The BGH thus contradicts the previous instances of the AG Worms and LG Mainz (Ref.: 9 C 88/15 and 6 S 16/16).
Voucher booklets also known as “Schlemmerblock”
The publisher of the voucher booklet “Schlemmerblock” had sued for payment of EUR 2,500. In this coupon booklet, restaurateurs from the region can advertise themselves and publish advertisements on two pages. In return, however, the restaurateurs undertake to offer all purchasers of the voucher booklet the cheaper main course free of charge on presentation of a coupon when purchasing two main courses.
Publisher of voucher booklet includes contractual penalty in general terms and conditions
To ensure that the business model would work, the publisher of the voucher booklet included a contractual penalty clause in the general terms and conditions. In the event of a breach, all innkeepers undertook to pay a contractual penalty of EUR 2,500 per breach, up to a maximum of EUR 15,000.
However, one of the restaurateurs included in the voucher booklet for 2015 repeatedly refused to redeem the voucher in his restaurant. According to his own statements, he was only prepared to serve a smaller portion as a free meal. Under no circumstances was he prepared to serve the rather expensive rump steak; after all, this was not one of his main dishes. At the same time, he told the publisher of the voucher booklet that he no longer wanted to take part in the campaign in future.
Voucher booklet: Mainz Regional Court still considered the high contractual penalty to be reasonable
On appeal, the Regional Court of Mainz was firmly convinced that the agreed contractual penalty was not unreasonably high. After all, the business model only works if the innkeepers comply with their contractual obligations. If an innkeeper did not comply with the contract, this could have massive negative consequences for all other participating innkeepers and the publisher of the voucher booklet.
BGH: Nullity of GTC clause – contractual penalty too high
However, the BGH expressly contradicts this in its ruling and overturns the judgment of the Mainz Regional Court. The general terms and conditions introduced by the publisher violated Section 307 para. 1 BGB and does not stand up to a content review. It is clearly contrary to good faith to agree a contractual penalty that only states a lump sum without differentiating between the weighting of individual infringements. The contractual penalty is disproportionately high, especially for the smallest infringements. This is because the contractual penalty also applies to the breach that only seven instead of the agreed eight main courses are offered. The clause should also apply if the service is unfriendly or the portion is smaller than usual.
As a reduction of the general terms and conditions to preserve their validity is generally not possible (ECJ, judgment of April 21, 2016 – Case C-377/14), the BGH considered the clause to be null and void as a whole.