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The original of the declaration of discontinuance does not necessarily have to be available

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The original of the declaration of discontinuance does not necessarily have to be available

In the case of warnings, we see again and again that the warning side demands that the person warned submit a signed declaration of omission and obligation in the original. The transmission of a mere electronic copy or a scan is often only accepted – if at all – if the signed original is submitted within a certain grace period. Now the BGH has decided the constellation. We classify the new case law and give dealers concrete recommendations for action.

I. By law: Freedom of form for the cease-and-desist declaration

In German civil law, the general principle of freedom of form applies. If the law does not provide for a mandatory form for a specific legal action, contract offers and acceptances can be effectively submitted without adhering to a specific form.

In principle, something else cannot be determined unilaterally with effect on others. On the other hand, however, everyone can decide for themselves whether they want to conclude contracts – for reasons of later provability – only in writing or at least in text form, at least in documented form and therefore refuse to conclude any contract that does not correspond to their own formal ideas.

Against this background, in the case of warnings under competition law, the question arises as to whether the person issuing the warning can require the person warned to submit the declaration of discontinuance and commitment required to eliminate the risk of repetition with regard to the respective competition violation in a very specific form, i.e. signed in the original.

II. The case before the BGH – facts

In a related case, which ultimately had to be decided by the BGH, the plaintiff warned the defendant of a violation of competition law.

As is customary and necessary for the elimination of the risk of repetition, the plaintiff also requested the defendant to submit a declaration of cease and desist and a declaration of commitment within a certain period of time. In the warning, she also pointed out that the transmission of the declaration of discontinuance and obligation by fax or e-mail is sufficient if its (signed) original is subsequently submitted to the plaintiff within a grace period, i.e. received by the plaintiff within the period.

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It is true that the defendant subsequently submitted a declaration of discontinuance and commitment by e-mail, the content of which satisfied the plaintiff, whereby he also attached a copy of the e-mail that had first been printed out on paper and then signed and scanned in the form of a PDF file. However, the defendant did not send the original to the plaintiff within the grace period.

The plaintiff was not satisfied with the merely digitally transmitted copy of the declaration of cease and desist. She sued the defendant. In the end, the case ended up before the Federal Court of Justice.

III. Decision of the BGH: No original of the declaration required

In this case, the Federal Court of Justice ruled that sending the defendant the signed declaration of discontinuance and commitment as a PDF file by e-mail to the plaintiff satisfies the legal requirements for eliminating the risk of repetition (judgment of January 12, 2023 – Az. I ZR 49/22).

1. Requirements for eliminating the risk of repetition

In order to eliminate the risk of a repetition of the competition violation complained about by the warning, a declaration of omission and obligation must:

be clear and sufficiently specific, show the serious intention of the person who has been warned not to commit the act complained of by the warning, which must be secured by an appropriate promise of contractual penalties, and fully cover the legal injunctive relief in terms of content and scope, ie unrestricted, irrevocable, unconditional and ( in principle) also without specifying an end date.

2. Important: Serious will to cease and desist required

According to case law, a very important prerequisite for a sufficient declaration of omission and obligation is whether it is an expression of a serious will to omission on the part of the person warned. Therefore, the sanction (=contractual penalty) promised in the declaration by the person who has been warned must be so disadvantageous for him that it is suitable for preventing the person who has been warned from repeating the infringing action.

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In the opinion of the BGH, the seriousness of the will to cease and desist can also be given in such cases if the signed declaration of cease and desist and obligation is not subsequently submitted in the original by post after a copy had already been sent by email.

3. No grounds for doubt or difficulties of proof

According to the BGH, it is part of the purpose and function of the declaration of cease and desist that the person who has been warned must make this declaration available to the person issuing the warning in a form that – if a dispute later arises between the parties in court – the enforcement:

without legal reasons for doubt and without difficulties of proof

allows. With the cease-and-desist declaration and declaration of commitment in hand, as the person who has been warned had previously sent it to the person issuing the warning, it must be possible for the person issuing the warning to assert his claims against him without any further legal hurdles.

4. No legal form requirement for declarations of discontinuance

In its decision, the Federal Court of Justice confirmed the legal assessment of the lower court, according to which a declaration of omission and obligation in itself is not subject to a statutory form requirement in the sense of § 126 BGB is subject.

A declaration of obligation to cease and desist is a so-called abstract acknowledgment of debt and as such is subject to the written form (§§ 780, 781 BGB). However, according to the provisions of §§ 343 Paragraph 1, 350 HGB, this written form requirement does not exist if the declaration of discontinuance and obligation is submitted by a merchant within the meaning of commercial law.

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This means: In B2B traffic between merchants, ie also between two online dealers, in the event of a warning under competition law, it is sufficient to send a cease-and-desist declaration and a declaration of obligation by e-mail (or by fax). Therefore, by law, a signed original does not have to be submitted by post.

IV. Recommendations for action for online traders

Being right is one thing, being right is something else entirely. Despite this decision by the BGH, it may be necessary in certain constellations from a legal point of view to send the signed original of the declaration of cease and desist.

In order to cover these and other constellations, we therefore give retailers the following important advice in the event of warnings:

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V. Conclusion: The essentials in brief

The following main points result from the new BGH case law on the form of declarations of omission and commitment:

The risk of repetition is only eliminated by sending a serious declaration of omission and commitment. A declaration sent electronically (e-mail, fax) can also be sufficient for this. If the person issuing the warning does not accept a declaration in text form, but rejects it, the If warned, hand in the signed original later.

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