Federal Court of Justice, 9 June 2010, Ref.: XII ZR 171/08
When drafting commercial leases, the landlord in particular must take particular care to ensure that individual clauses in the lease are not categorised as unreasonably disadvantageous to the contractual partner in accordance with Section 307 (1) BGB.
Pursuant to Section 307 (2) BGB, such provisions are to be classified as unreasonably disadvantageous if they are incompatible with the essential basic ideas of the statutory provision from which they deviate or if essential rights or obligations arising from the nature of the contract are restricted in such a way that the achievement of the purpose of the contract is jeopardised.
FactsIn the above-mentioned case, the commercial tenant concluded a commercial lease agreement with his former landlord in 2004. Among other things, this lease agreement included a clause in the form which granted the former landlord the right to transfer the agreement to another company at any time. In 2006, there was a change of landlord in accordance with this clause. The new landlord then terminated the tenant's contract without notice due to late payment and subsequently sued the tenant for payment of the rent arrears for 2006, compensation for renovation costs and - partly on the basis of assigned rights - back payment of ancillary costs for 2004 and 2005. The defendant disputed the plaintiff's entitlement to sue due to the invalidity of the standard form clause of the rental agreement concluded in 2004. The Regional Court upheld the claim and the Higher Regional Court dismissed the defendant's appeal. The defendant then appealed to the BGH.
BGHThe BGH ruled that the provision in the form for the assumption of the contract had become part of the contract even taking into account Section 305 c (1) BGB and was not invalid under Section 307 BGB. The provision was not so unusual that the contractual partner did not have to expect it. It is true that the transferability of a contract by a contractual partner to other persons is fundamentally alien to civil law. For this reason, the legislator in Section 309 No. 10 BGB only considered the entry of a third party into a purchase, service or work contract on the basis of general terms and conditions to be permissible under special conditions. In the case of tenancy agreements, however, the BGB is more open to a change of landlord, in accordance with Sections 565, 566 and 578 BGB. This also applies in particular to the drafting of commercial leases between entrepreneurs.
Source: Federal Court of Justice
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