Folgen der Unwirksamkeit der nicht Ausgehandelten Klausulen in Verbauchervertregen, die Hauptleistungspflichten aus dem Vertag Betreffen: Eine Untersuchung der Vereinbarkeit des Geltenden Deutschen Rechts mit der Richtlinie 93/13/EWG und der Aktuellen EUGH-Rechtsprechung

Abstrakt

The aim of this article is to analyze the legal consequences that consumers have to face when their contracts contain ineffective clauses, focusing specifically on German law within the scope of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

The first part examines the criterion of unfairness based on the standard of good faith as set out in Art. 3 I. It also examines what falls under the main subject matter of the contract, § 307 III BGB, along with a detailed consideration of the transparency requirements for terms. The two main criteria are that the term must be clear and understandable, § 307 I 2 BGB.

The main part deals with the methods of replacing unfair terms. Special attention is given to the supplementary interpretation of the contract, the dispositive statutory law and the "blue pencil test" developed by the German Federal Court of Justice. These tools are analyzed in terms of their suitability and appropriateness, especially when the main subject matter of the contract is implicated in the unfair term. Upholding the contract without the main subject matter fails because the essential part of the contract is missing. If it is not possible to replace the affected provision, the entire contract is null and void.

The next part determines the extent to which consumer preferences can be taken into account. The European Court of Justice considers the consumer's will to be significant in principle. However, it cannot disregard objective law.

In the final section, the article examines the concept of the reverse transaction in more detail, with a particular focus on the adjustment of the limitation period for the consumer's unjust enrichment claim.