JUDGMENT BGH VIII ZR 327/09 from 10. November 2010
HGB § 89a
If named in a commercial agency contract the breach of a contractually agreed-competition clause as an important reason for a dismissal, so this does not preclude contractual interpretation, after the competition violations, so insignificant taking all the circumstances, that through them the relationship of trust between entrepreneurs and sales representatives will not fundamentally damaged a reasonable appraisal, not – at least not without prior warning – entitle you to cancellation without notice (Continuation of BGH, Judgment of
7. July 1988 – I ZR 78/87, WM 1988, 1490).
BGH, Judgment of 10. November 2010
– VIII ZR 327/09 – OLG Stuttgart
LG Tübingen
– 2 –
There VIII. Civil Division of the Federal Court
s has on the oral
tion negotiation
from 10. November 2010
by the Chairman directional
er Ball, the judge
Dr. Frellesen, Judge Dr. Milger and the judges Dr. Achilles und
Dr. Bünger
hereby:
The revision of the defendant against
the judgment of the 5. Zivilsenats December
Higher Regional Court of Stuttgart vo
M 30. November 2009 is back-
regard to the termination of 3
./7. December 2007 as inadmissible
discarded; incidentally, it is di
e rejected revision.
The defendant has to bear the costs of this appeal.
By rights
Facts:
The plaintiff mediated since
1969 – first as a clerk in
the agency of his father and since
1. April 1984 as an independent Han-
delsvertreter – Insurance contracts for the predecessor of the defendant
and then for the defendant. in § 4 No..
1 of the applicant in March 1984
closed Agenturvertr
ages undertook
The plaintiff, during the
Duration of the contract neither
directly or indirectly to any other
Insurance companies than for the defendant and, in this contractual-
moody listed more
to be s insurance companies operating in. In
§ 11 of the Treaty states in part:
1
– 3 –
Ҥ 11 Termination of the agency agreement
(…..)
3. The termination of the contract may also from each
Part be pronounced without notice,
if there is good cause. An important reason, of the
In. entitled to an immediate termination, is particularly
even with a violation of § 4 … given this agreement.”
In the fall 2006 learned the defendant, that the plaintiff car-
Insurance contracts for above d
rrenzunternehmen had given. The
Plaintiff conceded in his
Opinion of 19. Okto
asks 2006 a, in the past-
defendants past ten of the
en terminated car insurance at
by another insurance
society “housed” to have, and explained-
shouldered his reasons for doing. After
a meeting held in 6. November
2006 announced the defendants with Schr
yew from 14. November 2006 the
Agency agreement under Bez
ugnahme to the manipulated
ungnahme by the applicant on
19. October 2006 and relying on §
4 No.. 1, § 11 No.. 3 of the contract
without notice.
2
Anfang Mai 2007 took the plaintiff an
tion independent agency operating
for M.
Insurance
on. Because of this activity were talking
the defendant on 3. and 7. December 2007 again the immediate termination of the
Agency Agreement for.
3
The plaintiff in his complaint the
Applied for determination, that the deadline-
loose from the denunciations 14. November
2006 and 3./7. December 2007 the
between the parties existing A
genturvertrag have not finished. The
District court of declaratory judgment
upheld. The Court of Appeal
zurückgew has the appeal of the defendant
iesen. With its Court of Appeal
approved revision pursue the defendants to dismiss her desire
more.
4
– 14 –
No.. 203) highlighted. Dana
ch, the Contracting
files not every ge-
ringfügige incident from the outset
as an important reason for termination
accept. Rather must despite availability of
recumbent such an agreement in the
Particular case we found
recommend this, ob der Vorfall so
is severe, that the
Terminating party to continue the reps
ages are no longer expected of
can. It is responsible for assessing de
r reasonableness all
rdings von Bedeu-
launched, that the parties to the highlighting of certain facts
have been seen, that
they have a special value to a failure to comply-
takes place this offense.
The Court of II. Civil Division of the VII have. and the I. Day-
vilsenat of the Federal Court
connected tshofs (Judgments
from 24. January 1974
– VII ZR 52/73, WM 1974, 350 under 1; within
M 7. July 1988 – I ZR 78/87, aaO unter
II 1 und III 1). In the judgment of the VII. Zivile
enats vom 24. January 1974 (VII ZR 52/73,
aaO) explicitly recognize, that
a contractual Konkurrenzver-
offered under special circumstances
may be interpreted as limiting änden. Nothing
different with regard to the Berufungsger
maybe BE DONE by way of interpretation-
Excluding minor mene We
ttbewerbsverstöße from the application-
tion range of § 11 No.. 3 Sentence 2 of the agency agreement.
28
Contrary to the opinion of the statutory
also follows from the statements
in the judgment of the Bundesgerichtshof of 7. July 1988 (I ZR 78/87, aaO) not, that
vorgenomm the Court of Appeal
ene restrictive interpretation of § 11
No.. 3 Sentence 2 of the agency agreement would be inadmissible. Following this decision,
depends entitlements for the extraor
nary termination
at a contract-
union designation of a premature
Justifying termination
Reasons not depend on, that in addition
still special order
present circumstances
would, the adherence to the contract
make unreasonable. Is also
the appellate judgment does not in Widerspruc
h. Because the Court of Appeal has
29
– 15 –
Effectiveness of immediate termination of the 14. November 2006 not therefore
negative, because it would have required, also
ss to the determined of competition-
surges additionally special – hi
he missing – Draw near circumstances
would, the dismissal to re
chtfertigen, but has the contract-
interpreted as intended, that geringfüg
strength competition infringements of prior-
neherein not under § 11 No.. 3 Sentence 2 of
Fall contract.
On such a
restrictive interpretation of the facts
s of the termination clause was the
Not prevented the Court of Appeal.
2. In the alternative, the revision gel
tend, weigh up the beiderseiti-
relevant interests would necessarily lead to the
Must come result, that the
Defendant a continuation of INFRINGEME
rhältnisses to
Expiration of the regulated-
lar period of notice can not be expected weight
was esen, because the interest of the loading-
complained of immediate termination of the
Contract significantly
greater weight was al
s the opposite interest of the applicant. Even so
does not penetrate through the revision.
30
The assessment, whether the terminating party
the continuation of the contractual-
holds isses unreasonable until the end of the regular notice and from
Therefore, a dismissal eng
is genuine manufactures, incumbent upon the trial judge.
The Court of Appeals, the decisions
g of the trial court
on the existence
or non-existence of the extraor
qualifying nary termination
good cause only limited
check m circumference. The rating
by the trial judge binds the Revision
court grundsätzlic
h. It can make the
identified circumstances attach no greater or lesser weight,
than the trial judge correctly held for
ten hat. The audit must be on-
restrict, whether the profession
ungsgericht the Rechtsbegri
ff the good cause
has misunderstood, whether it ge of the revision
undermined rebuked procedural violations
are, whether it is significant about Tatum
tände overlooked or not fully
31
– 16 –
has appreciated (st. Rspr.; vgl. Senatsurt
ecause of 17. December 2008 – VIII ZR
159/07, VersR 2009, 355 RN. 24 mwN). This is
T here is not the case. Die Revision
shows no skipped Sa
chvortrag or other legal
error on. It sets
only their weighting of the mutual interests of the place
the tatrichterli-
tion assessment.
Ball
Dr. Frellesen
Dr. Milger
Dr. Achilles
Dr. Bünger
Lower courts:
LG Tübingen, Decision
from 20.03.2009 – 21 The 92/06 –
OLG Stuttgart, Decision
from 30.11.2009 – 5 You 52/09 –