| Even if an objection instruction is incorrect, an objection can violate good faith. The Karlsruhe Higher Regional Court determined this in two cases. |
1. BGH has already decided in principle
The BGH had already decided that the later exercise of the right to object can violate good faith if there is only a minor error in the instruction (February 15, 2023, IV ZR 353/21, VK 23, 63). Whether there is a minor instruction error is a question of each individual case. The BGH decided that the missing reference to the 5a Paragraph 1 sentence 1 VVG (there in the version of July 13, 2001) is no longer a minor instruction error (March 15, 2023, IV ZR 40/21, VK 23, 86).
2. Further decisions of the OLG Karlsruhe
There are now two decisions by the Karlsruhe Higher Regional Court on the question of when the instruction error is still minor. The guidelines for the decisions are as follows:
- If the written form required by law for the objection is correctly indicated in a notice of objection, but elsewhere in the insurance policy the written form is required for declarations of intent to the consortium leader, the notice of objection lacks the required clarity. However, the later exercise of the right to object violates good faith, as there is only a minor instruction error.
- A notice of objection, according to which the period for the objection should begin with the “receipt of the insurance policy”, is incorrect. However, the subsequent exercise of the right to object violates good faith, as there is only a minor error in the instruction provided that the consumer information and the insurance conditions were actually sent to the policyholder with the insurance policy.
3. The reasoning of the OLG Karlsruhe
If the incorrect information does not deprive the policyholder of the opportunity to exercise his right of objection essentially under the same conditions as in the case of correct information, it would be disproportionate to enable him to free himself from the obligations arising from a contract concluded in good faith (ECJ 19.12 .19, Rust-Hackner and others, C-355/18 etc.). Under these (narrow) conditions, there is a minor error in instruction, which leads to an exercise of the right to object according to § 242 contrary to the German Civil Code (Federal Court of Justice 15.3.23, IV ZR 40/21Rn. 12).
a) Correct information was available
The incomplete information about the documents triggering the start of the period did not deprive the policyholder of the opportunity to exercise his right of objection essentially under the same conditions as with the correct instruction. According to the decision of the ECJ on December 19, 2019 (a. a. O.) when checking whether the policyholder is deprived of this opportunity, an overall assessment must be made. The national legal framework and the circumstances of the individual case must be taken into account. When applying from § 242 According to the prohibition of excess derived from the BGB, it must be checked whether the breach of contract is only minor and has no consequences as a result.
The decisive factor here is that the consumer information and the insurance conditions – according to the list of annexes in the accompanying letter to the policy – have been sent to the policyholder with the insurance certificate. Under these circumstances, it was impossible for the policyholder to be prevented from submitting an effective and, in particular, timely objection due to the incomplete information in the information on objections. Rather, he was correctly informed that the period begins with the conclusion of the contract and was able to calculate the period correctly based on the information in the instruction. He also had all the documents he needed to make a decision on the appeal. He was therefore able to exercise his right of objection under essentially the same conditions as in the case of correct information about the documents triggering the deadline. This is a minor violation of the board of directors’ duty to provide proper instruction with no consequences. According to § 242 BGB derived prohibition of excess, the granting of a right of objection would be disproportionate under these circumstances.
b) Change in case law
The Senate does not ignore the fact that the BGH has so far assumed a right of objection for the error in instruction here, even after years of implementation of the contract (28.9.16, IV ZR 192/14) and rated the error as not just marginal. According to the decision of the ECJ on December 19, 2019 (C-355/18) and the subsequent decision of the Federal Supreme Court of February 15, 2023 (IV ZR 353/21) this previous case law is at least obsolete in cases in which the lack of instruction was not suitable to prevent the policyholder from making an effective objection, i.e. in the end it had no consequences.
Nothing else results from the decision of the Federal Supreme Court of March 15, 2023, IV ZR 40/21. After that, if there is no reference to the required text form of the objection, the policyholder remains unclear about the form in which he has to submit the declaration of objection. This results in a not inconsiderable difficulty in exercising the right to object. There is no such complication here for the reasons set out.