Guiding principle
According to Art. 247 § 6 Abs. 2 EGBGB (in force since 11.06.2010), the information to be included in the contract about the right of withdrawal for consumer loan agreements includes a summonable address of the addressee of the withdrawal. A P.O. Box address is therefore not sufficient (in deviation from the requirements for revocation instructions under the law applicable prior to June 11, 2010); instead, a street, house number and zip code must be provided.
Tenor
The Senate intends to dismiss the defendant’s appeal by order pursuant to Section 522 para. 2 ZPO.
Reasons
A.
1 The plaintiffs concluded a real estate loan agreement with the defendant for EUR 120,000 (end no. -661) on 12/22 July 2011 and a so-called KfW loan agreement for EUR 70,000 on 18/22 July 2011. After they had redeemed the agreements on 27.10.2015, including the prepayment penalty, they revoked their declarations of intent to conclude the loan agreements in a letter dated 02.11.2015, which was received by the defendant on 04.11.2015.
2 At first instance, the parties disputed the validity of the revocation and a repayment claim of EUR 26,329.55 pursued with the action as well as indemnification from pre-trial legal fees. In a ruling dated April 19, 2017, to whose factual findings reference is made, the Regional Court granted the claim in the amount of EUR 23,280.55 (repayment claim for loan no. -661 of EUR 10,814.33 and for the KfW loan of EUR 12,466.22) plus interest and dismissed it in all other respects.
3 The defendant’s appeal is directed against this insofar as it was ordered to pay EUR 10,814.33 plus interest.
4 The defendant submits in support of its appeal:
5 The appeal is only directed against the fact that the Regional Court affirmed an effective revocation with regard to loan no. -661.
6 In this respect, the plaintiffs would have no claim under §§ 495 para. 1, 355 para. 1 sentence 1, 357 para. 1 sentence 1, 346 para. 1, para. 2 sentence 1 no. 1 BGB – in each case old version. It is true that they had a right of withdrawal according to §§ 495 para. 1, 355 para. 1 sentence 1 BGB because it was a consumer loan within the meaning of § 491 para. 1 BGB. However, the withdrawal period of 14 days had expired when the right of withdrawal was exercised.
7 The revocation information for the loan -661 satisfied the requirements of a clear and comprehensible presentation within the meaning of Art. 247 § 6 para. 2 EGBGB. Contrary to the opinion of the Regional Court, it was not necessary to provide a “summonable address”. The provision of Section 360 para. 1 sentence 2 no. 3 BGB (as amended from 11.06.2010 to 12.06.2014), according to which the “revocation instruction” must contain a summonable address of the revocation addressee, does not apply to revocation rights under consumer credit law pursuant to Section 495 para. 1 BGB. This follows from § 495 Para. 2 sentence 1 no. 1 BGB, according to which “the mandatory information pursuant to Art. 247 § 6 para. 2 EGBGB. The legislator itself made it clear (BT-DrS 16/11643, p. 83) that the information specified in Section 495 Para. 2 sentence 1 no. 1 BGB means an exclusion of § 360 BGB and results in its inapplicability.
8 The defendant applies (mutatis mutandis),
9 amending the judgment of the Regional Court of Berlin -4 O 57/16- handed down on April 19, 2017, to amend the operative part 1 of the judgment of the Regional Court to the effect that the defendant is ordered to pay the plaintiffs as joint creditors EUR 12,466.22 plus interest of 5 percentage points above the prime rate since November 18, 2015
10 The plaintiffs request,
11 dismiss the appeal,
12 and by way of cross-appeal (mutatis mutandis),
13 to order the defendant, partially amending the judgment of the Regional Court, to pay it a further EUR 1,161.36 plus interest of 5 percentage points above the prime rate since November 28, 2015.
14 The plaintiffs argue:
15 It is true that the application of Section 360 para. 1 sentence 2 no. 3 BGB to consumer loan agreements is excluded by section 495 para. 2 BGB. However, this only means that separate cancellation information no longer has to be provided for these contracts, but must now be included directly in the contract for reasons of full harmonization of the right of cancellation for consumer loan agreements. However, the question of how the revocation information must be structured has not been decided. The fact that the legislator requires withdrawal information to include a summonable address and that this is one of the “circumstances for withdrawal” specified in Art. 247 § 6 Para. 2 EGBGB (Introductory Act to the German Civil Code), it is clear from BT-DrS 16/11643 p. 123 and 128. Furthermore, the legislator had expressed its intention with the design note no. 3 to the model instruction in Annex 6 to Art. 247 EGBGB, according to which a summonable address must be stated, that such an address is part of the circumstances of the declaration of revocation.
16 There are also no indications that, beyond the constraints of full harmonization, the requirements for informing the consumer about his right of withdrawal in consumer loan agreements should be lowered in comparison to a separate withdrawal instruction pursuant to Section 360 BGB. The legislator had wanted to create largely uniform requirements for the withdrawal information when it created both § 360 para. 1 No. 3 BGB and introduced the new regulation on Section 495 BGB and Art. 247 Section 6 EGBGB.
17 They argue on cross-appeal:
18 The figures in the Regional Court judgment, according to which the plaintiffs were entitled to a repayment claim of EUR 150,102.83 for the -661 loan and EUR 94,021.09 for the KfW loan, are not contested.
19 However, the Regional Court wrongly assumed the defendant’s claims for repayment of capital and compensation for use – based on the plaintiffs’ calculations – to be EUR 120,000.00 + EUR 19,288.50 = EUR 139,288.50 and EUR 70,000.00 + EUR 11,554.87 = EUR 81,554.87. This was because the defendant had calculated the plaintiffs’ benefits of only EUR 18,259.58 and EUR 11,422.43. The Regional Court should have pointed out to the plaintiffs that it intended to assess the claims for compensation for use in the amount exceeding the defendant’s statement. The plaintiffs then stated that they adopted the defendant’s statement as their own. This was also to be inferred by way of interpretation from their submission in the statement of 11.10.2016, p. 35, in which they referred to an erroneous over-calculation of the compensation for use on the basis of the entire capital and not the respective outstanding capital balance.
20 On the basis of the compensation for use calculated by the defendant itself, the action should be upheld in the amount of a further EUR 1,161.36.
21 The defendant claims that the Court should,
22 to dismiss the cross-appeal.
23 She replies:
24 The plaintiffs had merely reserved the right to recalculate the compensation for use owed by them and to amend the claim in the statement of 11.10.2016, but had not made use of this right. The decision of the regional court was therefore correct.
B.
25 The appeal must be dismissed by order pursuant to Section 522 para. 2 ZPO because the Senate is unanimously convinced that it clearly has no prospect of success, the case is not of fundamental importance, the further development of the law or the safeguarding of uniform case law does not require a decision by the Court of Appeal and an oral hearing is not required.
26 1) The defendant’s appeal, which merely challenges the existence of a claim for restitution by the plaintiffs pursuant to Section 357 para. 1 sentence 1 BGB a.F. in conjunction with § 346 BGB. § 346 BGB regarding the loan -661 and in this respect only against the conviction on the merits (but without pursuing the first instance objection of forfeiture and abuse of the right of revocation) is unfounded.
27 The Regional Court rightly ordered the defendant to surrender EUR 10,814.33 to the plaintiffs as co-creditors (Section 432 BGB) because the revocation of their loan agreement declaration declared on November 4, 2015 was effective and the loan agreement of July 12/22, 2011 secured by a mortgage was thus transformed into a debt to be repaid in accordance with Sections 357 para. 1 sentence 1 BGB a.F. in conjunction with § 346 BGB. § Section 346 BGB.
28 The Regional Court rightly assumed that the plaintiffs were entitled to a claim under Section 495 para. 1 i.V.m. § Section 355 BGB in the version valid between 11.06.2010 and 12.06.2014 and that the withdrawal period pursuant to Section 495 para. 2 sentence 1 no. 2 letter b BGB in the version applicable here pursuant to Art. 229 §§ 32 para. 1, 38 EGBGB, applicable between 30.07.2010 and 12.06.2014, did not begin before the plaintiffs provided the mandatory information pursuant to Section 492 para. 2 BGB in the version applicable since 30.07.2010. According to § 492 Para. 2 BGB i.V.m. Art. 247 § 6 para. 2 S. 1 and 2 EGBGB – here: in the version valid between 11.06.2010 and 03.08.2011 – and Art. 247 § 9 Abs. 1 sentence 1 and 3 EGBGB in the version valid between 11.06.2010 and 20.03.2016 the provision of effective revocation information (see also BGH, judgment of 22.11.2016 – XI ZR 434/15, NJW 2017, 1306 para. 10).
29 The Regional Court correctly decided that the revocation information provided to the plaintiffs was not suitable to start the revocation period of 14 days (Section 355 (2) BGB old version), as it did not meet the requirements of Art. 247 Section 6 (2) EGBGB due to the indication of a PO box instead of a summonable (home) address. 2 EGBGB.
30 a) According to Art. 247 § 6 para. 2 sentence 1 EGBGB, the contract must also contain information on “other circumstances for the declaration of withdrawal” in addition to information on the period for exercising a right of withdrawal in accordance with Section 495 BGB. According to general opinion, this includes, among other things, information on to whom and by what means the revocation can be declared.
31 For the concretization of the “circumstances” only mentioned in Art. 247 § 6 para. 2 EGBGB, but not explained in more detail, according to the correct and prevailing opinion, the regulation of § 360 para. 1 sentence 2 no. 1 to 4 BGB in the version valid from 11.06.2010 to 12.06.2014 (which was adopted in Art. 246 para. 3 sentence 3 no. 1 to 4 EGBGB with effect from 13.06.2014) (LG Münster, judgment of 01.04.2014 – 14 O 206/13 juris Tz 62; MüKo/Schürnbrand, BGB, 7th ed, § 492 Rn 28; Staub/Renner, Großkommentar zum HGB, Bd. 10/2 (Bankvertragsrecht), 5th ed., 4th part -Kreditgeschäfte- Rn 672; jurisPK/Schwintowski, BGB, 7th ed., § 492 Rn 18; Staudinger/Kessal-Wulf, BGB, Neub. 2012, § 492 Rn 70; Derleder NJW 2009, 3195, 3200; Rösler/Werner BKR 2009, 1, 4).
32 Section 360 para. 1 sentence 2 no. 3 BGB (old version) stipulates that the revocation instruction must contain the name and address to which the revocation is to be declared. According to § 355 Abs. 3 BGB old version, this instruction content is a prerequisite for the start of the revocation period. Both provisions, which however only directly concern the design of the necessary content of a withdrawal instruction , were created with the Act on the Implementation of the Consumer Credit Directive and the Reorganization of the Provisions on the Right of Withdrawal and Return of 29.07.2009 (BGBl. I, 2355) at the same time as the new version of § 495 BGB regarding the right of withdrawal for consumer loan agreements and the introduction of the institute of a withdrawal information to be provided as part of the contract in Art. 247 § 6 para. 2 EGBGB was created. All regulations came into force at the same time on June 11, 2010. According to § 495 Abs. 2 sentence 1 no. 1 BGB, Sections 355 to 359a BGB apply to the right of withdrawal for consumer loan agreements “with the proviso” that “the mandatory information pursuant to Article 247 Section 6 para. 2 EGBGB”.
33 In these circumstances, it is not doubtful that the legislature referred to the “circumstances” referred to in Art. 247 § 6 para. 2 EGBGB on the simultaneously created provision of § 360 para. 1 BGB, which was created at the same time. The provision of § 495 para. 2 sentence 1 no. 1 BGB, according to which the mandatory information pursuant to Art. 247 para. 2 EGBGB takes the place of the revocation instruction does not speak against, but rather in favor of this assumption. This is because it was the declared aim of the legislator, with the introduction of the withdrawal information for consumer credit agreements, to comply with the full harmonization by Directive 2008/48/EC of 23.04.2008 on consumer credit agreements, which did not provide for separate withdrawal information outside the contract, and for this reason “to allow the corresponding information in the contract to take its place” (BT-DrS 16/11643, p. 83; see also BGH, Urt. v. 23.02.2016 – XI ZR 101/15, BGHZ 209, 86 = NJW 2016, 1881 Tz 29 f. with the indication that the information on the right of withdrawal should therefore now be included in the contractual document in the sense of a “one-document model”). For reasons of full harmonization, “an instruction within the meaning of Section 355 para. 3 sentence 1 in conjunction with § 360 para. 1 BGB”; the instruction would therefore be replaced by a contractual clause in accordance with Section 495 Para. 2 No. 1 BGB a contractual clause (loc. cit., p. 164). There is also no objective reason to impose different content requirements on revocation information than on revocation instructions (see also Grüneberg BKR 2019, 1: the revocation information has replaced the revocation instructions “without fundamentally changing the content”). It is also not apparent on the basis of which regulations other than Section 360 para. 1 BGB old version should be used to determine which “other circumstances for the declaration of revocation” should be made the content of revocation information.
34 Section 495 para. 2 sentence 1 no. 1 BGB is therefore not to be interpreted as meaning that (specifically) for a consumer loan agreement, information within the meaning of Section 360 para. 1 BGB is not relevant for the start of the withdrawal period, but that Section 355 para. 3 BGB is only to be applied with the proviso that – in accordance with the different concept applicable in this respect – the focus is not on the revocation instructions (which do not have to be provided), but on the mandatory information pursuant to Art. 247 § 6 para. 2 BGB, which however – not unlike in the direct scope of application of § 355 para. 3 BGB – “must meet the requirements of § 360 para. 1 BGB”.
35 Although this result, which is not immediately apparent from the statutory provision (see Derleder loc. cit.: “peak of legislative complexity”), is nevertheless sufficiently clear, it also corresponds to the expressly stated intention of the legislator, which in BT-DrS 16/11643 p. 128 the circumstances addressed in Art. 247 § 6 para. 2 EGBGB in particular with the formal requirements “in accordance with § 360 para. 1 No. 1 to 4 BGB”. This legislative intention is once again confirmed by the fact that, with effect from July 30, 2010, a model withdrawal notice was introduced as Annex 6 to Art. 247 § 6 para. 2 EGBGB was introduced, in which the indication of a “summonable address” is prescribed according to design note 3, and BT-DrS 17/1394 p. 21 states: “The model complies with the requirements of Article 247 § 6 para. 2 EGBGB – new – which implements the requirements of Article 10 para. 2 letter q of the Consumer Credit Directive and refers to Section 495 para. 2 No. 1 BGB”.
36 The references cited by the defendant, according to which section 360 BGB “does not apply” to the right of withdrawal under consumer credit law pursuant to section 495 para. 1 BGB “does not apply” because according to § 495 para. 2 sentence 1 no. 1 BGB, the mandatory information takes the place of the withdrawal instructions (MüKo/ Masuch, BGB, 6th ed. 2012, Section 360 para. 7; BeckOK-BGB/Christmann, 31st edition 1.5.2014, Section 360 para. 4) do not deal with the interpretation of Art. 247 Section 6 para. 2 EGBGB and should in any case only be understood to mean that a separate revocation instruction is not required under the law of consumer loan agreements.
37 b) A P.O. Box address does not constitute a “summonable address” (see BGH NJW 2002, 2391, 2394; BVerwG NJW 1999, 2608, 2609). Rather, such an address requires the indication of a street, house number and zip code (see BGH, judgment of 20.06.2017 – XI ZR 72/16, NJW-RR 2017, 1197 para. 26).
38 The case law of the BGH on the old law on withdrawal instructions, according to which an “address” within the meaning of Section 355 para. 2 sentence 1 BGB (in the version up to 10.06.2010) was only to be understood as a “postal address” and therefore also included a P.O. Box address (see BGH, Urt. v. 12.07.2016 – XI ZR 564/15, BGHZ 211, 123 = NJW 2016, 3512 Tz 16; Urt. v. 25.01.2012 – VIII ZR 95/11, NJW 2012, 1065 para. 13; judgment of 11.04.2002 – I ZR 306/99, NJW 2002, 2391), is no longer applicable to the law on revocation information in force since 11.06.2010, as the above-mentioned, coordinated provisions result in a different interpretation in this respect (a.A. Bülow/Artz, Verbraucherkreditrecht, 9th ed, § 495 Rn 103; OLG Saarbrücken, judgment of 06.12.2018 – 4 U 166/17 – juris Tz 41 f. for a loan agreement concluded on 28.06.2010 with reference to “§ 355 para. 2 sentence 1 BGB aF” and the aforementioned case law of the BGH).
39 Insofar as Bülow, loc. cit., points out that the so-called “one document model” applies to consumer credit agreements and concludes from this that the indication of the address in the body of the contract is sufficient, this is not to be followed. The law distinguishes between general mandatory information, which according to Art. 247 § 6 Para. 1 sentence 1 no. 1 in conjunction with. § Section 3 para. 1 No. 1 EGBGB (Introductory Act to the German Civil Code), and the information required under § 495 Para. 2 p. 1 no. 1 BGB (German Civil Code) replacing the revocation information pursuant to Art. 247 § 6 para. 2 EGBGB (so-called revocation information, see BGH NJW 2017, 1306 para. 10). The latter requires a contractual clause that informs the consumer clearly and comprehensibly (see Art. 247 § 6 para. 1 EGBGB, which also applies to paragraph 2 in this respect, see BGHZ 209, 86 para. 27 f.) about the existence of the right of withdrawal, the deadline and the circumstances for the declaration of withdrawal, which also include the addressee. The consumer should not be expected to gather the information from the entire contract. A summonable address elsewhere is therefore not sufficient (see Staudinger/Kaiser, Neub. 2012, § 360 Rn 23 m.N.).
40 c) The defect in the withdrawal information thus given is not due to the use of the model pursuant to Art. 247 § 6 para. 2 sentence 3 EGBGB in conjunction with. Annex 6 without significance. The defendant does not benefit from the fiction of legality of the model, as this precisely prescribes the details of the summonable address and its omission constitutes a relevant deviation from the model (see BGH, Urt. v. 20.06.2017 – XI ZR 72/16, NJW-RR 2017, 1197 para. 26; judgment of. 12.07.2016 – XI ZR 564/15, BGHZ 211, 123 para. 24).
41 2) A decision pursuant to Section 522 para. 2 ZPO is not precluded in the present case by the fundamental importance of the case or the need to develop the law or ensure uniform case law. In the opinion of the Senate, the question of whether, according to the law applicable from June 11, 2010, the revocation information for the consumer credit agreement must contain a summonable address of the revocation addressee can be answered with sufficient clarity on the basis of the law, the legal materials and the literature. The decision of the Saarbrücken Higher Regional Court, which was made on the basis of outdated law, does not make the legal question in need of clarification. The decision of the Higher Regional Court of Hamburg of 15.04.2014 – 13 U 52/14 – cited in the statement of defense does not indicate whether a contract was concluded after 10.06.2010. The commentary by Bülow is to be regarded as an isolated, unconvincingly substantiated literature opinion (see BGH NJW-RR 2010, 978) and also does not lead to the fundamental importance of the question.
42 3) The plaintiffs’ cross-appeal is dismissed pursuant to Section 524 para. 4 ZPO upon dismissal of the appeal by order pursuant to section 522 para. 2 ZPO without effect.
43 4) In its decision, the Senate will have to amend the decision on costs at first instance, if necessary, so that the defendant bears 88% of the costs and the plaintiffs each bear 6%. The (legally binding) dismissed claim for indemnification of pre-trial costs of EUR 1,872.35 relates to an ancillary claim that does not increase the value in dispute within the meaning of Section 4 ZPO and is not to be taken into account in the cost ratio in the present case.