Almost exactly a year ago that the company Euroweb the Federal Court called, to allow the type of contract their Internet system contracts require the superior court.
Contrary to what the law firm of Berger, which Euroweb Group represents, the Euroweb treaties by the Senate is not classified as a type of mixed service and rental contracts, but as work contracts and only the advance payment obligation has been approved in certain limits.
to negotiation:
Last Thursday, the found 27.1.2011, the hearing before the Civil Division of the Supreme Court VII with the active participation of reference customers of Euroweb Group and its lawyers, as well as the television instead. Some members of the firm Berger attended the truth.
The chairman of the Senate, opened the hearing and gave an outline of the case before it is closer to the issues raised was received. An Internet system contract with a term of 3 years was closed, created a website of Euroweb and about half a year has been allocated in www. The buyer terminated the contract pursuant to § 649 BGB and the LG Dusseldorf, as an appellate court upheld that dismissal, while directed the revision of the company Euroweb.
The Chairman further stated, was to clarify the effectiveness of the termination, or if the termination right effective under § 649 BGB could be excluded, is also on the payroll in accordance with § 649 BGB, sentence 2 to speak and here especially as the fees for services rendered or saved calculation basis.
The Chairman presented explicitly that in the opinion of the Senate, there had been a contract for work and § 649 BGB is generally applicable. The lawyer at the Supreme Court Dr. Nasall argued for the company Euroweb, referring in his remarks to the particular configuration of the Internet system Treaty, which it as a continuing obligation with a fixed maturity, and not be appearing as a classic contract for work. If it were an ordinary right of termination, which is in § 2 of the GTC (termination for cause) effectively waived.
A disadvantage of the customer is not present because Euroweb would yield the most benefits at the beginning of the contract and then distributes the investment costs over several years will be charged.
On the direct question of the Senate chairman, after convincing reasons why should be departed from the statutory scheme of § 649 BGB in the Internet system contracts could also teach Dr. Nasall no specific arguments.
Interestingly, from Dr. Nasall: "Customers have been recruited as a reference customer, which is not in dispute." The chairman pleaded with the words "You should not underestimate our knowledge of the file" and quoted from the lower courts, any document (in spirit play) "It is denied that our client's products are advertised as a reference customer."
On the "customer reference page" replied Mr. lawyer at the Supreme Court Dr. Kummer short and concise. He argues that if it were a termination of a contract for work that could be imposed without notice and without time limit and the age-old legal concepts based, which became the basis of the Supreme Court. The purchaser has an interest in the work, and not the operator whose Interests by § 649 sentence 2 BGB are adequately protected. The free right of termination is therefore not excluded and should result in an exclusion, this was ineffective, given that the fundamental valuation of the legislature would not be. Dr. grief goes on, and the III. Senate had the time free opt not say anything, as Ballantine page. On the issue of computation under § 649 sentence 2 BGB refers to Mr. Kummer made by the company Euroweb distinction between purchase and system customers. As the provision of a different nature, this should not be estimated on the basis of calculation for customer purchase and conclusions for System customers are drawn. Dr. Kummer stressed that the essential services that are provided at the beginning now is the free website. The savings in expenses had not been presented adequately.
requested Dr. Kummer dismissed the appeal.
Conclusion:
The hearing before the Federal Court was a very educational experience in terms of finding, which was understandable due to the Senate for non-lawyers.
Sources: blogigo and consumer
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