Brühl Local Court, 9 November 2017, Ref.: 23 C 170/14
Two concurring declarations of intent by the contracting parties are required to conclude a contract. Such a declaration of intent can also be made by a representative in accordance with Section 164 BGB. To do so, the representative must make their own declaration of intent in the name of another party and act within the limits of their authorised representation. A declaration of intent that someone makes in the name of the represented party within the scope of their power of representation is then directly effective for and against the represented party. It makes no difference whether the declaration is expressly made in the name of the represented party or whether the circumstances indicate that it is to be made in the name of the represented party, cf. section 164 para. 1 BGB.
However, there may be cases in which the contracting party does not have the necessary power of representation to conclude an effective contract for and against the represented party. The problem here, however, is that this is often unrecognisable to the contracting party and therefore requires special protection. For such cases, the constructions of prima facie and acquiescence authorisation were created. These apply in cases in which the contractual partner can assume that the required power of attorney exists due to the behaviour of the alleged representative and the represented party.
In particular, prima facie authority is established if the represented party could have recognised and avoided that the other party was taking legally effective action on their behalf if they had exercised due care. This would constitute a prima facie case on which the contractual partner could rely.
In the following judgement, the Brühl District Court had to deal with the question of whether a property manager who was not also the property manager, but who inspected the flat with the future tenant and also gave him the keys and signed the rental agreement on behalf of the landlord, gave rise to a prima facie case that she was also entitled to receive the rent payment and deposit, so that the tenant could have made payments to her with fulfilling effect. The court answered this question in the negative, as these circumstances alone did not create an objective situation that would give rise to such a prima facie case.
Facts of the Case:
Plaintiff is landlord, defendant is tenant of a flat
The defendant has been the tenant of a flat formerly owned by the plaintiff since 1 April 2013.
The rental agreement literally states that the plaintiff concluded the rental agreement with the defendant "represented by Sigrid W. Immobilien und Hausverwaltung B., M. Straße ... in ... B.". The tenancy agreement was signed for the landlord by the defendant as property manager. The contract is dated 20 March 2013 and provides for a deposit of € 900. According to § 4 of the rental agreement, payments, in particular the deposit, were to be made to the landlord to the account specifically named therein. The keys to the flat were handed over to the defendant by the intervener, who was not the property manager of the rental property in dispute. Nevertheless, the plaintiff issued an order to the proclaimed party to let the flat in dispute, who proposed the defendant as the new tenant.
Tenant pays neither rent nor deposit to the landlord, but to the property management company
However, the rent for the months of April and May 2013 in the amount of € 600 was not paid and the deposit of € 900 was not paid by the defendant to the specified account or another account of the plaintiff.
However, the defendant acknowledged receipt of a total amount of € 1,650, including two separate payments of € 600 from the defendant on 28 March 2013 and 8 May 2013 and a payment of € 450 from the defendant on 22 February 2013.
The flat was sold by the plaintiff during the proceedings and ownership of the flat was transferred to B. V. GmbH on 8 April 2014.
In letters dated 10 June 2013 and 6 January 2014, the plaintiff requested the defendant to pay a total amount of € 2,100.00, in each case setting a deadline, and also asked the defendant to pay him the amounts he had wrongly received, which was unsuccessful.
The plaintiff argued that the defendant had not paid the rents including advance payments for ancillary costs for the months of April and May 2013 in the amount of € 600 each and the amount of € 450 with discharging effect, as the defendant was not authorised to accept or receive the amounts. In addition, he denies with ignorance that the deposit was waived by an amount of € 350 between the defendant and the person making the announcement. The defendant was also not authorised to do so.
The flat is sold during the proceedings
The plaintiff originally requested that the defendant be ordered to pay the plaintiff € 2,100.00 plus interest of 5 per cent above the base rate on € 600.00 since 5 April 2013, on € 600.00 since 6 May 2013 and on € 900.00 since 1 April 2013. The plaintiff amended this claim and demanded that the defendant be ordered to pay the plaintiff € 1,200 plus interest at 5% above the base rate from € 600.00 since 5 April 2013 and from a further € 600.00 since 6 May 2013 and to pay B. V. GmbH, represented by the managing director Mr Simon J., H. ... K., € 900.00 plus interest at 5% above the base rate since 1 April 2013.
Defendant believes that he was able to pay the housing administration with discharging effect
The defendant requested that the action be dismissed as he was of the opinion that the defendant had agreed with the plaintiff that the defendant would be waived € 350 of the agreed deposit as he would renovate the flat. He had paid the amount owed of € 450 as well as the monthly rents in dispute in cash against receipt to the defendant and paid the amount totalling € 1650.00 to the defendant with discharging effect. He further claimed that he had only received the written rental agreement at a later date, which the plaintiff denied with ignorance. In addition, the plaintiff had instructed the defendant by telephone to receive money for payments from the tenant, which in any case created the legal appearance that the defendant was authorised to receive money and could make further arrangements. She had also carried out the inspection of the flat in dispute, which the plaintiff again denied with ignorance.
Judgement of the Brühl Local Court:
Brühl Local Court follows the landlord's opinion
The action is admissible and well-founded, as the plaintiff can demand an amount of € 1,200.00 from the defendant in accordance with Section 535 (2) BGB.
A rental agreement in accordance with Section 535 (1) BGB exists between the parties, which is why the defendant as tenant owes the plaintiff as landlord the payment of the agreed rent.
The plaintiff's declaration of intent to conclude the contract with the third-party notice was attributable to him as his own in accordance with §§164 et seq. BGB, as the latter had the necessary power of representation. At the date of the oral hearing, the plaintiff admitted that he had given the order to let the rental property in dispute to the defendant.
By paying the property management company, the tenant had not fulfilled his payment obligation.
However, the plaintiff's claim was not extinguished by fulfilment in accordance with Section 362 BGB. The court stated that it was sufficiently convinced of the defendant's payment to the defendant in accordance with Section 286 ZPO. According to the principle of the free evaluation of evidence, evidence is provided if the court is convinced of the accuracy of a factual assertion, taking into account the entire result of the taking of evidence and the other perceptions in the oral hearing, and all reasonable doubts have been dispelled. Because of the receipts that the defendant was able to submit, this was established as a presumption based on the private document. However, those payments by the defendant had not had a fulfilling effect in relation to the plaintiff.
Property management company was not authorised by the landlord to receive the goods
In particular, the defendant was neither an auxiliary person or receiving agent of the plaintiff responsible for receiving the payment, nor was she legally authorised by the plaintiff to receive or collect the payment in her own name. The defendant, who had the burden of proof, was unable to prove this to the satisfaction of the court in accordance with § 286 ZPO. Neither the defendant nor her son were able to sufficiently specify the assertion made by the defendant in the statement of 10 October 2014 that she had never acted as administrator for the plaintiff, but had been "authorised by him by telephone with powers of attorney to receive money (...)" during the hearing and did not provide the court with any facts that would make the alleged authorisation of the defendant by the plaintiff objectively verifiable. The witness's presentation of the facts was not sufficient in this respect; rather, the intervener merely stated in general terms during her interrogation that payments to her had been agreed with the plaintiff by telephone. The defendant was unable to provide detailed information on this. Nor was she able to provide detailed information on whether she or her office had been authorised to receive the monthly rents from the plaintiff, in particular the rents in question. Requested documents on the authorisation to collect or receive were also not submitted to the file. Witnesses were unable to provide any further information and claimed that the factual assertion that two payments had been made in the specific case had "turned out that way". However, the fact that it was not apparent that the plaintiff did not agree to receive the money is not sufficient to prove that the plaintiff expressly or even conclusively authorised the defendant.
Good faith on the part of the tenant is not sufficient for fulfilment
Insofar as the defendant here assumed in good faith that the third party in dispute was authorised to receive the goods, this did not ultimately lead to a different result. This is because, unless a special statutory provision applies, such as those contained in §§ 169, BGB § 370, BGB § 407, BGB § 208 BGB, the payment to an unauthorised third party only has a discharging effect if the creditor subsequently approves it or one of the other two cases of § 185 (2) BGB occurs. This was not the case here. In particular, it had not been shown and proven that the money paid had been paid to the plaintiff.
Nor can the authorisation be constructed on the basis of a prima facie case or a prima facie or acquiescent power of attorney. This is because a prima facie authorisation requires a prima facie case that can be attributed to the represented party as principal and on which the counterparty relies so that it acts accordingly. The represented party could not invoke the lack of power of representation of its representative if it had culpably caused the legal appearance of a power of attorney, so that the opposing party could assume in good faith with regard to customary practice that it was authorised and had assumed this.
An objective basis is therefore required in order to justify a legitimate expectation on the part of the counterparty in good faith that the representative is acting on behalf of the represented party with power of attorney, as well as corresponding behaviour on the part of the represented party (action or omission). An assertion by the representative regarding the power of attorney is not sufficient for this.
However, there was no such objective situation here. The defendant had not claimed that the defendant or her son had at any time expressly declared to him that they were authorised to receive money with regard to the rental agreement in dispute.
The defendant's submission merely describes a legitimate expectation that the defendant was allowed to carry out corresponding actions and was authorised by the plaintiff to carry out actions that typically fall within the remit of a broker. However, from the point of view of an objective third party, this did not also lead to the assumption that she was authorised to accept monies to which the landlord was entitled. In order to justify such an assumption, further evidence and indications would have had to be present. The fact that the defendant was indisputably named as the plaintiff's representative in the rental agreement submitted to the court and signed the agreement on his behalf was also not sufficient.
Designation as property manager does not authorise acceptance of the power of attorney to receive
The designation of acting as a property manager is not sufficient to objectively consider the name holder as authorised to receive rent and rent deposits or to collect them for the landlord. There is no statutory catalogue of tasks for this person and it is therefore up to the landlord to delegate the corresponding tasks and rights to which he is originally entitled from the tenancy. The organisation of the viewing appointment and the handing over of the keys to the tenant were also not indications that would point to a prima facie case. The witnesses themselves could not have said anything to the effect that the acceptance of money was typical of a property manager. Rather, the realisation of the viewing appointment and the preparation of the handover protocol was to be carried out by the property manager.
In addition, Section 4 of the rental agreement states that payments are to be made to the landlord or the plaintiff named therein to the account specifically listed therein. The defendant could therefore not assume that payments could be made to the defendant with discharging effect on the basis of the rental agreement. A later acknowledgement of this provision, because the defendant only received the rental agreement later, does not lead to a different result, as this is not sufficiently proven, so that in particular it is not apparent that the two payments made by him in the amount of € 600 each on 28 March 2013 and on 8 May 2013 to the defendant were made when the defendant had not yet received the rental agreement in dispute. This is contradicted by the fact that the rental agreement, which is undisputedly signed by the defendant, is dated 20 March 2013.
Finally, the plaintiff could also demand payment of € 900 from the defendant to his legal successor or the undisputed purchaser of the rental property in dispute. He was entitled to continue the proceedings in accordance with Section 265 (2) ZPO after the rental property in dispute was undisputedly sold by the defendant to the purchaser at a time after the pendency of the present action. In this respect, the plaintiff was entitled to change his claim. According to § 264 No. 2, this was also permissible without the consent of the defendant
The claim follows from the rental agreement, in which a deposit payment of € 900 was indisputably agreed. As the defendant was not able to pay the defendant with discharging effect, his argument that he had already paid € 450 to the defendant was not valid.
The plaintiff's claim was also not reduced by € 350 by way of an effective remission agreement, as the defendant had not sufficiently presented and proven a corresponding agreement between the defendant and the plaintiff. Whether an agreement had existed between the defendant and the third-party notice was irrelevant in this respect, as the court was of the opinion that the entitlement of the third-party notice had not been sufficiently proven even after the taking of evidence. The witness W. had not been able to provide any information in this regard and the party making the statement of dispute had also not been able to provide such authorisation in a sufficiently reliable and credible manner. She had not confirmed the defendant's assertion that she had agreed with the plaintiff "in the presence of witnesses" that the defendant would be waived € 350 of the deposit for renovating the flat himself. During her interrogation, the intervener merely stated that she had found a transcript in her documents which showed that this had been discussed with the plaintiff. The person announcing the dispute was unable to provide any further information, but this was not enough to sufficiently convince the court that the plaintiff had authorised the person announcing the dispute to make a corresponding legally binding declaration to the defendant. Since the proclaimed party did not rely on its own perception and could not provide any specific information on the entire rental process, there was a lack of evidence and a bundle of high-quality real indicators as a result of which the information provided by the proclaimed party could be sufficiently assessed as reliable and credible.
The court also stated that the defendant's own interest in the outcome of the present proceedings could not be ruled out and that she could not be categorised as an independent witness.
All of this is at the expense of the defendant as the party with the burden of proof.
The court clarified that the request for a further hearing of the defendant would constitute inadmissible evidence of reconnaissance, even if the defendant, as the party with the burden of proof, could not have any knowledge of the relationship between the defendant and the plaintiff. Extensive questioning had already been carried out.
There were no sufficient indications that the defendant could provide further information regarding the legal relationship with the plaintiff in view of the questioning of her son, the witness W, and this was also not objectively apparent.
There are no other facts that could lead to a prima facie case
Further facts that could lead to a prima facie case were also not apparent. This is because the defendant had not put forward any concrete evidence or circumstances that objectively allowed the defendant to draw the justified conclusion that the person who announced the dispute was also authorised to make agreements that deviated from the rental agreement to the detriment of the plaintiff.
In addition, a waiver agreement would also not fulfil the required form, as the written rental agreement signed by the defendant expressly stipulates a deposit of € 900 under § 5. Finally, amendments to the contract must be made in writing in accordance with the provision contained in § 25, as must the amendment of this written form clause itself.
In view of the above, the action is to be regarded as well-founded.
Source: Brühl Local Court
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