Caution: Contractual Penalty

A swimming pool operator must pay € 4,500 in contractual penalties because he used an unlawful standard terms clause again despite a cessation declaration. The Higher Regional Court (OLG) Hamm (Urteil vom 15.04.2025 – Az. 4 U 77/24) decides on the "core theory".

I. Subject Matter of the Decision – Legal Background

At the centre of the decision is the question of forfeiture of a contractual penalty due to the use of an identically worded clause in standard terms and conditions (AGB). In particular, this concerns the scope of a contractually promised obligation to cease and desist and the application of the core theory to the substantive equivalence of clauses in light of §§ 339 BGB, 305c Abs. 2 BGB and 307 BGB.

II. What Was the Issue Exactly?

A consumer protection association (plaintiff) took action against a swimming pool company (defendant) for payment of a contractual penalty of € 4,500. The occasion was the renewed use of an AGB clause, which in modified form was used in 2023 in the house and bathing regulations of the swimming pool.

As early as 2017, the plaintiff had issued a cease and desist warning regarding an almost identical clause, and the defendant subsequently issued a contractual penalty clause cessation declaration. It undertook not to use the objected-to clauses and substantively identical clauses in future.

The clause now used regulated a security deposit of € 80 in the event of loss of a so-called "ChipCoin", which was partially retained. The plaintiff saw in this a circumvention of the cessation obligation, particularly because the clause – like the originally warned-against one – establishes liability for damages independent of fault.

The Regional Court (LG) Dortmund initially dismissed the action because it found no substantive equivalence between the clauses. The plaintiff appealed against this.

III. Legal Considerations of the Higher Regional Court (OLG) Hamm

The Higher Regional Court (OLG) Hamm set aside the first-instance judgment and allowed the claim. The central considerations of the court are:

1. Admissibility of the appeal decision despite a partial judgment

The Higher Regional Court (OLG) was able to decide the matter despite a procedurally defective partial judgment of the Regional Court (LG), as this was expedient in the interests of procedural economy (§ 538 Abs. 2 Nr. 7 ZPO).

2. Applicability of the Core Theory

In assessing the substantive equivalence, the Senate applied the so-called core theory. According to this, clauses are to be assessed as substantively equivalent if they leave the legal core of the warned-against infringement untouched. The content is to be determined by reference to the grounds for ineffectiveness cited in the cease and desist warning.

3. Binding Effect of the Cessation Declaration

Since the defendant had undertaken to cease and desist without any limitations, it was presumed that she intended to avoid all grounds for ineffectiveness asserted in the cease and desist warning – here in particular lack of transparency and liability for damages independent of fault – in future.

4. Substantive Equivalence of the New Clause

The Higher Regional Court (OLG) regarded the new clause as substantively equivalent because:

• the same scope of application affects (loss of objects in the bath),
• it prescribes a comparable legal consequence (withholding of a benefit/sanction without fault),
• it must be interpreted in accordance with § 305c Abs. 2 BGB such that the bath guest even in the event of misuse by third parties is liable for the amounts recorded on the chip,
• it thus likewise violates § 307 Abs. 2 Nr. 1 BGB i.V.m. § 280 Abs. 1 BGB.

The fact that the new clause is now formulated more clearly and no longer constitutes a breach of transparency is irrelevant, because the core violation (liability without fault) persists.

5. Forfeiture and Contractual Penalties

Since there was an objective breach of the declaration of cessation, the fault of the defendant was presumed, which it could not rebut. The contractual penalty was therefore due and justified in the amount of EUR 4,500.

IV. Recommendation for Enterprises on Dealing with Contractual Penalties

1. Take contractual penalty undertakings seriously: After issuing a declaration of cessation subject to penalty, substantively similar clauses must be reviewed very carefully. Formally amended wording is insufficient to change the regulatory content to such an extent that it is not regarded as materially identical.

2. Heed the core doctrine: Entrepreneurs should comprehensively capture the legal grounds from previous cease-and-desist letters and avoid all aspects of the objected-to provision, not just individual ones.

3. Use transparent and differentiated terms and conditions: Clauses should be clearly formulated and designed in such a way that no liability without fault arises. The scope of application and legal consequences must also be clearly distinguished from each other.

4. Regular legal review of terms and conditions: Following changes in legislation or case law (such as the UKlaG-Novelle), terms and conditions clauses should be regularly reviewed by counsel in order to avoid cease-and-desist letters and contractual penalties.

Conclusion

The decision of the Higher Regional Court (OLG) Hamm underscores the high importance of review of terms and conditions and contractual penalty management in commercial law. Entrepreneurs, particularly in business with end customers, should have every amendment to their terms and conditions legally validated by AVANTCORE Rechtsanwälte in order to avoid economic risks.