Regional Court of Cologne, 11 July 2013, Ref.: 1 S 313/11
The rental deposit represents security for the landlord, which should enable him to cover any damage or rent arrears in the event of the tenant moving out.
The tenant can provide the rental security either in cash or in the form of a guarantee.
As part of the rental guarantee, the guarantor undertakes to guarantee the tenant's liabilities resulting from the tenancy in accordance with Section 551 BGB.
If the guarantor is requested to make payment, he must always protect the interests of the principal and carefully check the creditor's authorisation. To this end, the guarantor must obtain information from the principal debtor about any defences and objections.
If the guarantor fails to carry out the necessary checks in individual cases, he may be liable to pay damages to the principal debtor.
In the above-mentioned judgement, the Regional Court of Cologne had to decide whether the guarantor had breached its obligations towards the principal debtor by paying out the amount of the guarantee and had thereby made itself liable for damages.
Facts of the Case The landlord contacted the tenant's bank, which guaranteed the rental deposit, in order to obtain payment of the guarantee amount.
The bank did not hear the tenant and paid out the guarantee amount after it had received the third letter from the landlord, in which the claims for compensation were conclusively set out for the first time in terms of reason and amount.
The tenant's current account was debited. The tenant then sued and claimed damages from the bank. The Cologne District Court initially dismissed the claim. The plaintiff appealed against this decision to the Cologne Regional Court.
Cologne Regional CourtThe Cologne Regional Court followed the plaintiff's view and ruled that the appeal was admissible and was also largely successful on the merits.
The plaintiff is entitled to claim damages from the defendant in accordance with Section 280 (1) BGB. By paying out the guarantee amount to the plaintiff's landlord, the defendant culpably breached its obligations arising from the agency relationship, as a result of which the plaintiff suffered a corresponding loss.
There was a breach of secondary obligations on the part of the defendant. The guarantor's payment decision must be preceded by a careful examination required by the circumstances of the individual case, whereby the scope and content of the examination obligations depend on the content of the legal relationship with the principal debtor, the interests at stake and the individual circumstances.
The guarantor is also obliged to protect the interests of the principal when satisfying the creditor. This includes a careful examination of the creditor's authorisation. As a rule, the guarantor must check the facts known to him about the principal claim for objections or defences that are obvious to him.
In principle, the principal debtor should also be asked about the existence of objections or defences against the warranty claims, as only the principal debtor generally has the knowledge and documents required to raise and substantiate objections and defences against the guaranteed debt.
According to the above-mentioned principles, the defendant culpably breached its duties of inspection under the agency agreement by not hearing the plaintiff comprehensively on possible objections. The defendant had only forwarded the landlord's demand letter to the plaintiff for comment before paying out the guarantee amount.
However, it did not send the subsequent letter from the landlord addressed to the defendant to the plaintiff. However, a hearing on this letter would have been necessary from several points of view.
Firstly, in this letter the landlord had for the first time specifically quantified his alleged claims against the plaintiff, broken down into individual items. Secondly, in this letter, the landlord had for the first time made a claim for outstanding rent.
Taking note of the letter would therefore have been of considerable importance for the plaintiff in order to be able to raise specific objections to the claim under the guarantee.
The plaintiff had suffered damage as a result of the defendant's breach of duty.
As the creditor of the alleged claim for damages, the plaintiff bears the burden of presentation and proof for the causal link between the breach of duty and the damage in accordance with Section 280 (1) BGB.
A reversal of the burden of proof in favour of the plaintiff does not apply. In the event of a breach of contractual duties to provide advice and information, a reversal of the burden of proof in such a way that the debtor bears the burden of presentation and proof that the damage would also have occurred in the event of dutiful behaviour, i.e. that the injured party would have ignored the information.
This is required by the protective purpose of the duty to inform and warn. However, this consideration does not apply to the breach of the duty to examine and consult in question here, as this was not also intended to prevent the plaintiff from having difficulties in providing evidence.
Source: Cologne Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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