October 22, 2011

Roll–over contracts and the BGB

In German law, a roll-over clause in a B2C-contract must comply with § 309 Nr. 9 BGB.

1. Applicability of § 309

According to § 310 I, II BGB, § 309 BGB is applicable only if 1) the contract is a B2C-contract and 2) the contract is not with an energy or water supplier. Also excluded are insurance contracts, contracts on goods which were sold as belonging together and contracts on copyrights (§ 309 Nr. 9 BGB).

2. Dauerschuldverhältnis

If these provisions are met, § 309 Nr. 9 BGB provides that the contract in question must be a "Dauerschuldverhältnis" (the regular exchange of goods or services over a certain time).

This condition is to be taken literal. The BGH recently handed down a decision stating that the contract on a BahnCard (a card by the Deutsche Bahn, entitling the customer to discounts on train fares) does not fulfill this requirement. On the grounds the customer is merely entitled to discounts, there is no regular exchange of services or goods to be seen in this contract. Therefore it is not a "Dauerschuldverhältnis" (BGH, Urteil vom 15. 4. 2010 - Xa ZR 89/09 in NJW 2010, 2942, (2943)).

3. Forbidden stipulations

The clause then is not permitted to a) bind one party for more than two years or b) provide for a tacit extension of the contract for more than one year at a time or c) stipulate a notice exceeding 3 month for ending the contract. The wording is identical to the old § 11 Nr. 12 AGBG, which was in force until 31.12.2001. As the wording is unambiguous, it seems that these conditions are met most of the times. In decisions, this question is even treated as a triviality (OLG Hamm, Urteil vom 8.4.2010 - I-17 U 203/09 in MMR 2010, 607).

4. Alternative test according to § 307 I BGB

If the roll-over clause has proven to be valid so far, it could still be violating the provision of the more general § 307 I BGB. While it is accepted, that § 307 BGB can be applied next to the § 309 Nr. 9 BGB (MMR 2010, 607), it is contested in how far the wording of § 309 Nr. 9 BGB sets the track for the evaluation of the clause according to § 307 BGB. This matter needs to be examined in further depth, taking into account concurring opinions of literature and jurisdiction.

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