In a judgement of 27.04.2021 (Az. XI ZR 26/20), the XI Civil Senate of the Federal Court of Justice ruled on the invalidity of general terms and conditions clauses that feign the bank client’s consent if the bank makes changes to the general terms and conditions.
The complaint filed by the Federal Association of Consumer Centres and Consumer Associations was directed against clauses in general terms and conditions stipulating that changes must in principle be offered to the customer two months before the date on which they are to take effect. However, the express consent of the customer shall not be required for these clauses to take effect. Insofar as he does not indicate any rejection within the period between the offer and the effective date, the consent shall be deemed to have been given. The bank will make special reference to this in the offer and the customer also has a termination option.
The plaintiff brought an action for an injunction against the use of such clauses. After unsuccessfully going through all instances, he turned to the BGH with his request to oblige the bank to refrain from using these clauses.
The court came to the conclusion that the clauses were invalid. They do not stand up to a review of general terms and conditions pursuant to § 305 et seq. BGB.
An interpretation of the disputed clause No. 1 (2) of the GTC shows that it concerns all amendments to the contracts concluded between the bank and the client. This may also include, for example, securities transactions and savings transactions. Without there being any restriction in this respect, every contractual amendment agreement is therefore affected by the effect of approval. The BGH sees this as a significant deviation from the basic idea of § 305 para. 2, § 311 para. 1, §§ 145 et seq. BGB, according to which silence in legal transactions is generally not to be regarded as a declaration of intent. Accordingly, the GTC offer cannot be effectively accepted without the customer actually giving his consent. This was to be seen as an unreasonable disadvantage to the customer pursuant to section 307 (1) sentence 1, (2) no. 1 of the German Civil Code (BGB), which is presumed in the case of a substantial deviation from the basic ideas of the law. In the case of fictitious consent, the bank has the power to redraft the contract on its own authority. Even the possible exercise control with regard to already agreed amendments did not change the existence of the unreasonable disadvantage. Rather, an amendment agreement was required for an amendment of the GTC, especially if such fundamental and far-reaching provisions for the contractual relationship of the parties were involved, as in the case decided in this case.
With regard to another clause, no. 12 (5) of the disputed GTC, the court also came to the conclusion that the clause was invalid. This regulates charges for main services. Because of the customer’s fictitious consent, the main performance obligations owed by the bank can be changed by means of GTCs – and without restrictions. This leads to the bank being able to influence the contractual provisions to its advantage in a significant way, which can lead to a devaluation of the client’s position. This was an unreasonable disadvantage contrary to the principles of good faith. In order to be effective, an amendment agreement meeting the legal requirements would also be required. The fiction of consent, on the other hand, was not sufficient.
This decision will have far-reaching consequences for practice. On the one hand, this makes it necessary to adapt comparable clauses in legal transactions. Furthermore, certain amendments to the GTC may also be retroactively invalid. With respect to consumers, amendments to general terms and conditions or special terms and conditions based on a mere fiction of consent by the customer may not have become effective. This would have the consequence that the originally agreed conditions would continue to apply, which may well lead to a need for legal action.
If you have any questions about changes to the GTC, we will of course be happy to advise you. We continue to follow developments on this issue and will keep you informed.

Other interesting news articles