What are risk areas
In the judgment, BB 1973, 496 = WM 1973, 388, the judging Senate has already expressed doubts as to whether an agreement made on the basis of a form, according to which the restaurant can cease to function without transferring the rights and obligations from the machine installation contract to a legal successor, not from the contractual obligations, does not at least violate 242 BGB, if the contracting party of the installer is not the owner but the leaseholder of the restaurant. These concerns are rooted in the experience that the innkeeper, as the lessee, is usually not able to ensure that the inn will continue after the inn has been closed. These concerns, which were upheld in the judgment of the judging Senate, WM 1977, 112, , continue to exist. The professional court has taken them into account when it assumes that the tenant will not be bound if he leaves the restaurant due to exceptional circumstances and gives up circumstances outside his risk area.
So if extraordinary circumstances that were not in the leaseholder's risk area had led to the business being closed, the successor clause in the machine installation contract would not apply without the leaseholder needing to terminate the contract for good cause. The reason given by the defendants that they were not in a position to raise the monthly rent cannot be regarded as an exceptional circumstance for the abandonment of the restaurant that is not in their risk area. The possibility of generating sales in a leased restaurant that covers business costs and also ensures a reasonable return is in the risk area of the lessee. Even a significant drop in sales, even if it leads to losses, does not justify a - sanction-free - business closure. This is especially true if, as the defendants have claimed, the takeover of a restaurant with a bad reputation turns out to be a wrong entrepreneurial decision.
The defendants did not launch a substantial appeal on a revision against the statements of the professional court that the loan agreement of September 1976 was not considered immoral on its own because of usury, nor did its connection with the machine installation agreement result in its immorality. The revision's view that an interest rate of 9.5% for an otherwise unsecured loan would result in a conspicuous misunderstanding of performance and consideration is not correct. The assertion that the plaintiff should have been aware from the outset that the defendants would never be able to raise the high interest and the repayment installments for the loan, a total of DM 750 per month, has no basis in the factual findings of the professional court and would be in the otherwise unsuitable to demonstrate the invalidity of the contract.
The revision also complains in vain of the ineffectiveness of the vending machine installation contract due to a violation of the formal requirements of § 34 GWB. The professional court has correctly presented the scope of the written form requirement for machine installation contracts with reference to the highest court rulings and executed it free of legal error, the contract of March 1977 met the requirements. The information contained in it on the type and number of machines adequately takes into account the purpose of the provision in Section 34 GWB. A type designation was not required in order to make clear all of the decisive criteria for marking and describing the mutual performance obligations.
The vending machine installation contract of March 1977 that came into effect afterwards has not been terminated either by termination without notice for an important reason or by mutual repeal.
Insofar as the lower court stated that the defendants were not authorized to terminate the machine installation contract, this does not affect the appeal.
The professional court did not consider the conclusion of a termination agreement through conclusive behavior to be proven due to the questioning of a witness. The defendants did not provide further suitable evidence for the alleged termination of the contract in a manner that is procedurally significant. The naming of a further witness in a pleading received only one day before the oral hearing happened too late, with the result that the evidence could no longer be admitted. It was no longer possible to summon the witness to the Senate meeting for reasons of time. The admission of the evidence would therefore have required a new hearing and thus led to a delay in the settlement of the legal dispute - both in terms of the reason and with regard to a partial amount in terms of amount.
The appeal on law counters this by stating that the witness could have been summoned by telephone. That way a delay would have been avoided. Since the other date for the hearing about the amount of the damage was only scheduled later, there would have been no delay in the legal dispute even if the witness had been heard in a new date before this point in time.
There are no procedural concerns that the lower court did not hear the witness. The chairman of the professional court set the defendant a deadline for a written response to appeal. This period also applied to the naming of evidence. The defendants did not name the witness in due time. The professional court was therefore allowed to proceed according to § 296 I ZPO, i. H. it had to admit the defense only if that would not delay the settlement of the dispute, or if the defendants had sufficiently excused the delay. The defendants have not submitted an apology for the delay in the appellate court. A proper summons to the appointment was no longer possible. The chairman did not need to take action over the phone. The lower instance rightly assumed that delaying a decision on the reason for the claim also justifies the non-admission of a belatedly named means of defense in accordance with Sections 520II, 527, 296 I ZPO. The legislature has given the courts the possibility of a preliminary ruling on the reason for a performance request with the intention of simplifying processes in which there is a dispute about the reason and amount of claims. If the main focus of the dispute, as in the present case, is the reason for the obligation to pay compensation, it is advisable to end this stage of the procedure by means of an interim judgment in order to relieve the dispute over the amount of the repeatedly repeated disputes over the liability. This is not least in the interests of the parties, who can set up their arguments accordingly. The equality of the interim judgment about the reason. the claim with a final judgment with regard to the contestability with legal remedies underlines the independence of the procedure on the ground. The final termination of this dispute must therefore not be delayed, nor may the issuance of a judgment that terminates a legal dispute as a whole.
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