A swimming pool operator has to pay a contractual penalty of EUR 4,500 because it again used an unlawful GTC clause despite a declaration to cease and desist. The OLG Hamm (Judgment of 15.04.2025 - Ref. 4 U 77/24) decides on the "core theory".
I. Subject of the decision - Legal background
At the center of the decision is the Question of the forfeiture of a contractual penalty because of the Use of a clause with the same content in general terms and conditions (GTC). In particular, this involves the Scope of a contractually promised cease and desist order and the Application of the core theory on the equality of content of clauses in the light of §§ 339 BGB, 305c Para. 2 BGB and 307 BGB.
II. What exactly was it about?
A consumer protection association (plaintiff) made a claim against a swimming pool company (defendant) for payment of a contractual penalty of €4,500. The reason was the Renewed use of an AGB clausewhich in modified form was used in the swimming pool's house and bathing regulations in 2023.
The plaintiff had already issued a warning for an almost identical clause in 2017 and the defendant had subsequently issued a cease-and-desist declaration with penalty clause was issued. It undertook not to use the offending clause or clauses with similar content in future.
The clause now used governed the loss of a so-called "ChipCoin". Security deposit of 80 €which was partially retained. The plaintiff saw this as a circumvention of the obligation to cease and desist, in particular because the clause - like the clause originally warned against strict liability for damages justify.
The Dortmund Regional Court initially dismissed the action because it No equality of content between the clauses. The plaintiff appealed against this.
III. Legal considerations of the OLG Hamm
The Higher Regional Court of Hamm overturned the judgment of the court of first instance and upheld the claim. The Central considerations of the court are:
1. admissibility of the appeal decision despite partial judgment
The Higher Regional Court was able to decide on the merits of the case despite a procedurally flawed partial judgment by the Regional Court, as this was expedient in the interests of procedural economy (Section 538 (2) no. 7 ZPO).
2. applicability of the core theory
To assess the Equality of content the Senate withdrew the so-called Core theory is applied. According to this, clauses are to be assessed as having the same content if they leave the legal core of the infringing act for which a warning has been issued unaffected. The content is with reference to the grounds for ineffectiveness from the warning letter.
3. binding effect of the cease-and-desist declaration
Since the defendant had undertaken to cease and desist without restrictions, it was assumed that it all grounds for invalidity asserted in the warning letter - in this case, inter alia Lack of transparency and strict liability - wanted to avoid in the future.
4. equality of content of the new clause
The OLG considered the new clause to be identical in content because:
- they are the same Area of application (loss of items in the bathroom),
- they have a Comparable legal consequence (withholding of a benefit/sanction without fault),
- it must be interpreted in accordance with Section 305c (2) BGB in such a way that the bather even in the event of misuse by third parties is liable for the amounts booked on the chip,
- them with it also violates Section 307 (2) No. 1 BGB in conjunction with Section 280 (1) BGB. § Section 280 para. 1 BGB violates.
The fact that the new clause is now formulated more clearly and no longer constitutes a breach of transparency is irrelevant because the Core violation (strict liability) continues to exist.
5. forfeiture and contractual penalty
As there was an objective breach of the cease-and-desist declaration, the Fault of the defendant presumedwhich it was unable to refute. The contractual penalty was therefore due and justified in the amount of € 4,500.
IV. Recommendation for companies on dealing with contractual penalties
1. take contractual penalty promises seriously: After submitting a cease-and-desist declaration with a penalty clause, you must Clauses with similar content must be examined very carefully. Formally amended wording are not sufficient to change the regulatory content to such an extent that they are deemed not to have the same content.
2. observe core theory: Entrepreneurs should Legal grounds from previous warnings completely and avoid all aspects of the contested schemenot just individuals.
3. use transparent and differentiating general terms and conditions: Clauses should be clearly formulated and designed in such a way that no strict liability is created. The Scope of application and legal consequences must be clearly differentiated from each other.
4. regular legal Review of general terms and conditions: Following changes in the law or case law (such as the UKlaG amendment), GTC clauses should be regularly reviewed by a lawyer in order to avoid warnings and contractual penalties.
Conclusion
The decision of the OLG Hamm underlines the High importance of AGB control and contractual penalty management in commercial law. Entrepreneurs, especially those in the end customer business, should legally validated by AVANTCORE lawyersto avoid economic risks.
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