| In VK 23, 63 we had the BGH decision of 2/15/23 (IV ZR 353/21, retrieval no. 233810), according to which an objection raised as a result of only a minor instruction error by the board of directors is abusive. In a further decision, the BGB specified this. |
1. The key message of the new decision
The BGH gives its new decision of 15.3.23 (IV ZR 40/21, retrieval no. 234603) the following guiding principle:
“If a notice of objection does not contain any reference to the 5a Para. 1 S. 1 VVG (here in the version of 13.7.01) required form (here text form) of the objection, there is no minor error in instruction, which does not deprive the policyholder of the opportunity to exercise his right of objection essentially under the same conditions as exercise with appropriate instruction (delimitation to the Senate judgment of 15.2.23, IV ZR 353/21).
2. Missing reference to text form
The notice of objection contained no reference to the 5a Paragraph 1 sentence 1 VVG in the version valid from August 1st, 2001 required but also sufficient text form of the objection.
3. The reasoning of the BGH
If the objection instruction does not contain any reference to the 5a Para. 1 sentence 1 VVG required but also sufficient text form of the objection, the policyholder remains unclear about the form in which he has to submit the declaration of objection. This constitutes a not inconsiderable complication in exercising the right of objection to a properly instructed policyholder, who must also be instructed in particular about the form required for the objection to be effective (see BGH 28.1.04, IV ZR 58/03). The purpose of the objection instruction is to make it clear and unmistakably clear to the policyholder under what conditions he can effectively object (cf. ECJ 19.12.19, Rust-Hackner et al., C-355/18 bis C-357/18 and C-479/18).
If it is up to the policyholder to determine the form required for an effective objection, there is a risk that the objection will not be made in the manner specified in § 5a Para. 1 sentence 1 VVG in the version valid from August 1st, 2001 is submitted in text form, which is required but also sufficient. The consequence would be that the objection is ineffective.
From the information contained in the instruction that the timely dispatch of the objection is sufficient to meet the deadline, the policyholder will not infer that an objection in text form is necessary, but also sufficient. Rather, he will assume that an informal objection is also sufficient.