Classify mixed contracts according to the main focus of the contract - Study place placement

In a recent ruling, the Federal Court of Justice decided that mixed contracts, for example for the placement of a study place abroad, are only to be legally assessed according to the contract law in whose area the focus of the contract lies. This is the only way to do justice to the specific nature of the respective contract. A contract for the placement of a study place at a foreign university, which contains elements of service and work contracts, is to be measured against the model of the brokerage contract, for example if there is an unreasonable disadvantage to the consumer due to a general terms and conditions clause.

The judgment of June 5, 2025 (case no. I ZR 160/24) concerned the payment claim of a company that arranges study places in medical and pharmaceutical disciplines abroad for applicants. In the contract concluded with the defendant applicant in the summer of 2022, the following remuneration was agreed: "If the applicant obtains a study place with the assistance of S. M., the applicant shall pay S. M. a success fee (net) in the amount of an annual tuition fee of the respective university for the commissioned course of study." In addition, the applicant was to reimburse the applicant for costs such as notarizations and translations. The applicant offered two options to withdraw from the contract at a price of at least € 1,500.00 in the event that the applicant received and accepted another place to study either in Germany or another selected location during the placement year. The defendant withdrew from the contract for personal reasons approximately one month after conclusion of the contract and submission of the application documents to the applicant. The plaintiff replied on the same day that the desired university had already admitted the defendant to study about two weeks earlier and charged the defendant approximately € 11,200.00 for placement and expenses. The defendant began his studies at a different location, he revoked and terminated the placement contract.

The mediator's claim for payment for her mediation services was unsuccessful in all three instances.

The agreement of a success fee in the agency terms and conditions was invalid pursuant to Section 307 (1) sentence 1, (2) no. 1 BGB. It is a general business condition that unreasonably disadvantages the applicant, as it deviates from the essential basic ideas of the statutory regulation in an incompatible manner. Even if the brokerage agreement is a mixed-type contract, it must be assessed as a whole in accordance with the law on brokerage contracts. It is recognized in case law that a mixed contract forms a uniform whole. In principle, it would only do justice to the nature of the contract to subject it as a whole to the contract law to which the focus of the contract was to be assigned. It is not the name of the contract that matters, but its content. The interpretation here shows that the main focus of the contract is a brokerage contract pursuant to Section 652 BGB, namely the procurement of a study place in return for a success fee. This is not contradicted by the agreed fixed-term commitment to the contractual obligations, which, although not in accordance with the law, corresponds to the usual agreement of a brokerage agreement. The contract also does not have a service contract character because the plaintiff organizes the application process and helps with preparatory courses to pass entrance examinations; because the remuneration is to be paid solely for the successful placement of the student, the amount is not based on the plaintiff's expenses, but on the tuition fees.

The remuneration agreement unreasonably disadvantages the applicant. It was to be interpreted as meaning that a success fee had been agreed, which, however, was already to be paid when the applicant received the acceptance letter. This deviates considerably from the model of the brokerage contract, in which the client has the freedom of decision and a fee is only due upon conclusion of the contract - in this case the acceptance of the study place. The applicant is thereby restricted in his choice of study place. Shifting the risk of concluding the contract to the applicant is also not justified here by the fact that the applicant has a particular risk or high expenditure. Advance services are typically provided by the broker without the broker receiving any remuneration if the contract is not concluded.

With regard to the expenses, the BGH did not have to decide on the merits of the case, as there was no grounds for appeal in this respect.

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