{"id":27408,"date":"2025-05-12T18:59:12","date_gmt":"2025-05-12T16:59:12","guid":{"rendered":"https:\/\/avantcore.de\/?p=27408"},"modified":"2025-10-07T15:19:12","modified_gmt":"2025-10-07T13:19:12","slug":"attention-contractual-penalty","status":"publish","type":"post","link":"https:\/\/avantcore.de\/en\/attention-contractual-penalty\/","title":{"rendered":"Attention contractual penalty"},"content":{"rendered":"

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<\/a>) decides on the \"core theory\". <\/strong><\/p>\r\n

<\/p>\r\n

I. Subject of the decision - Legal background<\/strong><\/p>\r\n

At the center of the decision is the Question of the forfeiture of a contractual penalty<\/strong> because of the Use of a clause with the same content in general terms and conditions (GTC)<\/strong>. In particular, this involves the Scope of a contractually promised cease and desist order<\/strong> and the Application of the core theory on the equality of content of clauses<\/strong> in the light of \u00a7\u00a7 339 BGB, 305c Para. 2 BGB and 307 BGB.<\/p>\r\n

II. What exactly was it about?<\/strong><\/p>\r\n

A consumer protection association (plaintiff) made a claim against a swimming pool company (defendant) for payment of a contractual penalty of \u20ac4,500. The reason was the Renewed use of an AGB clause<\/strong>which in modified form<\/strong> was used in the swimming pool's house and bathing regulations in 2023.<\/p>\r\n

\"Contractual<\/p>\r\n

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<\/strong> was issued. It undertook not to use the offending clause or clauses with similar content in future.<\/p>\r\n

The clause now used governed the loss of a so-called \"ChipCoin\". Security deposit of 80 \u20ac<\/strong>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<\/strong> justify.<\/p>\r\n

The Dortmund Regional Court initially dismissed the action because it No equality of content<\/strong> between the clauses. The plaintiff appealed against this.<\/p>\r\n

III. Legal considerations of the OLG Hamm<\/strong><\/p>\r\n

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<\/strong> are:<\/p>\r\n

1. admissibility of the appeal decision despite partial judgment<\/strong><\/p>\r\n

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).<\/p>\r\n

2. applicability of the core theory<\/strong><\/p>\r\n

To assess the Equality of content<\/strong> the Senate withdrew the so-called Core theory<\/strong> 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<\/strong>. The content is with reference to the grounds for ineffectiveness<\/strong> from the warning letter.<\/p>\r\n

3. binding effect of the cease-and-desist declaration<\/strong><\/p>\r\n

Since the defendant had undertaken to cease and desist without restrictions, it was assumed that it all<\/strong> grounds for invalidity asserted in the warning letter - in this case, inter alia Lack of transparency<\/strong> and strict liability<\/strong> - wanted to avoid in the future<\/strong>.<\/p>\r\n

4. equality of content of the new clause<\/strong><\/p>\r\n

The OLG considered the new clause to be identical in content because:<\/p>\r\n