14 September 2021
Lending Focus - September 2021 – 4 of 6 Insights
Clauses in a bank’s general terms and conditions which deem the consent of a customer to subsequent amendments are commonplace. However, on 27 April 2021, the German Federal Court of Justice ruled that these types of clauses are now invalid. The same applies to clauses which deem customer consent to the adjustment of fees for bank services.
Retail banks usually include provisions deeming client consent to any amendment to the terms and conditions which form part of the banker-customer contract and to any increase in fees, if the client has not rejected such amendment in due time before the amendment comes into force. It is, of course, open to the bank's client to terminate the contractual relationship if the proposed amendment is unacceptable.
The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) considered these deeming provisions invalid and sued the German Postbank.
The Federal Court of Justice confirmed the view of the Federation of German Consumer Organisations.
According to the Federal Court of Justice, s 675g of the German Civil Code (BGB) is not to be regarded as an unqualified permission to make unilateral amendments to the banker-customer contract. Pursuant to s 675g BGB, the payment service provider and the payment service user may agree that the consent of the latter to an amendment is deemed to have been given if the latter has not notified the payment service provider of his rejection within the given timeframe.
However, this provision does not supersede the control mechanisms set out in ss 307 et seq. BGB. Applying the deemed consent of the customer to amendments without restriction has the effect of giving unilateral and unlimited power to the bank to amend the contract. This unreasonably disadvantages the client. Furthermore, clauses that provide for deemed consent to higher bank fees empower the bank to shift matters considerably in its favour. They devalue the position of its contractual partner. Moreover, such clauses deviate from the basic legal principle, that silence is not to be regarded as consent and that an agreement generally requires explicit consent to be given by both parties.
The entire retail banking industry is affected by this decision. Moreover, companies outside the banking industry (e.g. insurance companies) use similar amendment clauses in their terms and conditions, so this decision is also relevant for them.
At this point in time, we cannot predict whether the Federal Court's ruling will also apply to B2B business. However, it seems likely – in commercial transactions, fictions regarding the principles on silence are only permitted in narrowly-defined exceptional cases, under particularly strict conditions.
Banks are taking the ruling seriously and some have already suspended planned fee increases. How exactly the ruling will be implemented and how financial institutions will probably refund fees to their customers is still being intensively discussed.
The Federal Financial Supervisory Authority (BaFin) is paying close attention to whether and how banks implement the court ruling and is also considering issuing a general order.
BaFin estimates the volume of possible repayments to customers may amount to as much as half a year’s profit for the entire bank sector.
by Cheng Bray
by Cheng Bray