What's happening now: News

• Insolvency challenges and state immunity

  January 2025

  On 16.01.2025, the IX Civil Senate of the Federal Court of Justice referred the question to the European Court of Justice in an insolvency law avoidance case (case no. IX ZR 60/24) against the Polish tax authorities as to whether Art. 6 (1) EU Insolvency Regulation contains an implicit waiver of the principle of state immunity by the EU Member States with regard to the recognition of foreign insolvency proceedings if an insolvency administrator asserts under the applicable insolvency law that legal acts (such as payments) are contestable due to creditor prejudice.

• Federal Court of Justice: permissible substitution of the claim in dispute in an objection to a default judgment

  December 2024

  According to an interesting decision of the Federal Court of Justice in terms of procedural law, it is permissible to only pursue a different claim with the objection after a default judgment has been issued than before. The restriction in appeal proceedings, according to which an appeal is inadmissible if it is not also directed at least against the specific complaint arising from the first instance judgment, therefore does not apply to the objection.

• Copyright: no freedom of panorama for drone photographs

  November 2024

  Drone images are not subject to the freedom of panorama under copyright law, as clarified by the Federal Court of Justice in its ruling of October 23, 2024. Images of copyrighted sculptures, installations, paintings, etc. that were created using a drone may therefore not be used commercially, published in magazines or made publicly available online, e.g. on websites or in social media, without the consent of the author.

• Unit price contract: Construction schedules are not instructions within the meaning of Section 2 (5) VOB/B.

  October 2024

  The Federal Court of Justice set out the requirements for a change to the construction process in the unit price contract within the meaning of Section 2 (5) VOB/B in its ruling of 19.09.2024. According to this, a change order requires a legal declaration from which the intention to unilaterally change the contract can be inferred. According to the BGH, the interpretation according to the general rules also shows that reactions to construction schedule disruptions, including in the form of amended construction schedules, do not constitute an amendment in this sense. In addition, the BGH confirmed that a claim for damages pursuant to Section 6 (6) VOB/B requires the breach of a contractual obligation by the client, not merely an obligation.

• Commencement of limitation period in the event of improper use of funds in the contract

  September 2024

  According to a recent ruling by the Federal Court of Justice, if an agent uses funds provided for investment at a bank for an improper purpose, the client's claim for restitution against him only becomes due when it is established between the parties that the funds were not invested in accordance with the order and the agent is therefore no longer in a position to do so. The mere improper use does not start the limitation period if the client has no knowledge of this.

• Necessary assertion of a value in dispute enabling an appeal against non-admission in the courts of fact

  August 2024

  On 11.07.2024, the First Civil Senate of the Federal Court of Justice made an interesting decision for civil procedural practice. According to this decision, the parties must already assert a complaint (and thus an amount in dispute) of more than € 20,000.00 in the factual instances and present the factual requirements for this if they want to keep the path to the third instance open. Furthermore, if the appeal judgment does not contain any facts, the appellant's submission must be assumed in the appeal against denial of leave to appeal proceedings, which can make it easier to assert a violation of the right to be heard.

• Medical liability: no reversal of the burden of proof in the case of a (simple) breach of the duty to provide therapeutic information

  July 2024

  The reversal of the burden of proof in the event of a simple error in the assessment or securing of findings in accordance with Section 630h (5) sentence 2 BGB does not apply if a treating physician has breached the obligation to provide therapeutic information, according to the VI Civil Senate of the Federal Court of Justice in a recent ruling. Sections 630a et seq. of the German Civil Code have not changed its previous case law on the reversal of the burden of proof in medical liability law. The distinction between an error in making a diagnosis and an error in providing therapeutic information still depends on where the focus of the medical error lies according to the circumstances of the particular case.

• Contracts between banks in cashless payment transactions and third-party claims settlement

  June 2024

  The contractual relationships between the banks involved in cashless payment transactions do not have a protective effect in favor of third parties; as the Federal Court of Justice ruled in a recent judgment, the principles of third-party damage liquidation apply in this respect. The payment service provider of the payee is obliged to inform its intermediary bank that the interests of the payer are at risk if the risk is objectively evident. If a bank breaches a duty to warn or inform in payment transactions, the presumption of correct disclosure applies, which reverses the burden of presentation and proof in favor of the party to be informed.

• Federal Court of Justice on the initial jurisdiction of an antitrust senate in appeal proceedings

  May 2024

  According to a recent decision by the Federal Court of Justice, the jurisdiction of a special senate - in this case for antitrust cases - in appeal proceedings is also conceivable if a general civil law dispute was conducted at first instance. This applies to proceedings in which aspects relevant to antitrust law are asserted for the first time in the second instance, provided that they can be taken into account in civil proceedings, in particular if they are not late. In order to effectively lodge such an appeal with the Higher Cartel Court, the antitrust aspects must be raised within the time limit for filing the grounds of appeal. In individual cases, however, the admissibility of the appeal may also result from uncertainty regarding the jurisdiction of the general court of appeal.

• The German Scale of Medical Fees (GOÄ) also applies to contracts with legal entities.

  April 2024

  In its ruling dated 04.04.2024 (III ZR 38/23), the Federal Court of Justice ruled that the scope of application of the GOÄ (scale of fees for doctors) also extends to contracts for outpatient medical services concluded between a patient and a legal entity, such as a hospital operator. It is only important that remuneration is claimed for the professional services of a doctor. A flat-rate price agreement between, for example, a hospital and a patient is therefore invalid.