determine the applicant sought that no contractual or other rights of the defendant J-GmbH against the plaintiff by the use of the services offered by the defendant services consist of the selected mobile number . there The applicant has a legal interest in finding the earliest opportunity, as the defendant against the plaintiff by her with the calculations of T-GmbH for selected mobile phone number in the amount of € 39.39 and € 23.94 in the amount of claims asserted continually famous. The question however is whether the action is justified also. In the present case would the action to be well founded if no claims the defendant made J-GmbH against the applicant.
come in initially considered possible contractual claims. The question is therefore whether the parties are contractual arrangements for the provision of the invoices that the underlying services effectively come about. A contract is addressed, also in the use of modern means of communication such as short message service of a mobile phone, according to general rules and principles of business law doctrine of civil law. A contract is, therefore, acc. S.1 BGB § 151, reached by application and acceptance. This requires first the existence of two matching statements of intent, that of action will, awareness and financial statement will borne human thoughts utterances that are directed at achieving a legal success, here a contract is concluded.
The defendant was here, the outcome of their objective receiver horizon of a statement of intention by the applicant himself. This, however, in the opinion of the court, not the factual existence of these declarations of intent. The objective receiver horizon, acc. § 157 BGB is only when the contract, ie in the context of the interpretation to bear, not even at the question of whether any The will. Rather, an interpretation is in accordance with § 133, 157 BGB, the existence of a declaration of intent ahead fulfill the legal criteria. It can also be left open whether the daughter of the applicant, the statement of intent at all in the name, namely, has made on behalf of her father, acc. § § 164 I 2, 133, 157 BGB. Because the effectiveness of such contracts for and against the plaintiff depends firstly, that the applicant has authorized its subsidiary under § 164 I 1, 165, 167 I BGB. It is far from here, to assume a power of representation of minors. This is important for the effectiveness of the subsidiary agreements concluded by, for and against the father, now, acc. § 177 I BGB, on its approval. This has denied the father against the defendant but on several occasions explicitly. Thus, the previously ineffective pending transactions, shall become void.
questionable, however, is whether the defendant can rely on an apparent authority of the daughter of the plaintiff. An apparent authority exists when the principal action of the apparent agent does not know, but it would have to recognize and prevent dutiful care and was allowed to take the other part, the principal and cheap tolerate the actions of the representative. The apparent authority is based on the setting of a law license and is a legitimate expectation ahead of the other part. Such is not the case here. The defendant could not accept the plaintiff tolerate the actions of its cheap ticket representative. The defendant was of general experience not to trust that only use of legal age, or even just contract with the respective mobile phone provider to the mobile phones. Rather, the defendant went unquestioned for the purposes of private autonomy contract to provide in the position of her person and her age is not known contractor services, their payment, they could not be sure. The private autonomous action using a modern, the processes of the defendant simplistic technology such as short messaging service at the expense of the uncertainties about the age or ability to pay the contractor, can the adoption of legitimate expectations and thus constitutive one for the appearance of authority by the applicant do not seem to set right.
The question remains whether there could estoppel. It requires at least that the person represented, it can be done knowingly, that another appears to him as a representative. This is not the case here. The plaintiff did not by the actions of his daughter. As soon as he learned of it through the first invoice for the services at issue here, rather it is immediately to the contracting process his daughter happened. Therefore no estoppel is concerned.
is questionable whether the defendant in the contractual agreements of the applicant with the T-GmbH, as under a contract with protective effect for third parties pursuant to § § 311 III 1, 241 II BGB, can derive rights. Such third-party effect fails to come to a lack of vulnerability of the defendant as its own contractual rights into consideration. Moreover, in the mobile phone use by third-party users on the basis of civil law transaction doctrine to distinguish rather that the contractor for use in the phone itself directly against the cell phone provider charges incurred einsteht. This has its origin in the pre-existing, and through him direct written contractual agreement with the respective wireless carrier. The claims follow here, not from third party users when placing a call or a text message only contracts. The use of mobile phones under the existing contractual commitment of the contracting party in whose statement. The situation is different at the conclusion of new contractual agreements between two non-parties (ie non-users with third-party),
which the technology of short message service, the latter not verify the exact person and age his contractual partner, the conclusion of contracts make only advantage.
"This gives only a contractual obligation of the contractor of the mobile phone provider's case, not the plaintiff, if it may also make a secondary statement load, where such contracts have been concluded through his mobile phone."
addition could be a claim by the defendant of unjust enrichment acc. § 812 I 1 Alt. 1 BGB be considered. These declines, the court shall, however, because the applicant has not obtained any financial advantage.
question is not whether the defendant is entitled to a tort claim under § 832 BGB I could. Any liability of the applicant as Aufsichtspflichtigem Through its subsidiary, is the Court's view, also not available. This requires at least a tortious act of the daughter. Such is not detectable.
Conclusion: The action was well founded. There are no contractual or other rights of the defendant against the plaintiff, from the use of, the defendant offered, services. The court decision strengthens the protection of minors and their parents at the conclusion of accidental on-line subscriptions and mobile phone subscriptions. There were, however designs, the AG Berlin, concerning the legal nature of such a ring-tone versions "have been desirable. The decision of the AG was the center of Berlin A model of 4/20/2010 Exam exam in NRW. There were the same legal problems. In addition, had to contain the original case was based on the verdict, two modifications are processed.
AG Berlin Judgement of 28.07.2008 - 12 C 52/08
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