Details

Parent Category: News Archives

Created on Friday, 07 November 2008 00:34

Last Updated on Wednesday, 13 February 2013 14:09

Private School’s Standard Termination Per Half Year

If a private school provides in its standard terms and conditions that parents can only withdraw their kids at the end of a calendar half year. One parent disagreed and went to court. The Federal Court of Justice decided on January 17, 2008 (re III ZR 74/07).

[PPD_PAYTOREADMORE]

In 2001, two boys attend a private school, which was using the stipulation that any partner of the contract may give two months notice in writing either to January 31 or July 31 – school’s half-year. 0n June 2, 2005, one of the boys in fifth grade was pinched and his skin was twisted by a seventh grader. The fifth grader was inspected by a physician. The boy’s participation was in dispute among the parties. His parents were informed on the incident. The school director informed them that they their son admitted his partial responsibility on the incident and that one hour detention was ordered. During his detention, he was supposed to write an essay which was to be graded afterwards. With much commotion, the parents rejected their son’s admission and demanded the allegation be taken back where their son admitted to have any responsibility in the incident. Since the parents stubbornly refused to seriously negotiate the school’s decision. In no way would the parents even consider opening themselves for the director’s arguments. Therefore, the school gave notice to the contract for the fifth grader. The parents took the school to court.

The court held that the school contract between the parties was effectively terminated to January 31, 2006. The parties had closed a contract on private schooling that is qualified as considered as a services contract. The school has the right to give notice contract in accordance with their standard terms and conditions. In contrast to the opposing side’s opinion, the notification stipulation is not null and void following §307 BGB.  Since this contract has been pre-worded for multiple clients, the rules for standard terms and conditions are applicable (§305 I 1 BGB). The parents are not correct in their opinion that this stipulation is void because it was unusual and surprising (§305c I BGB). It is in fact compatible with essential principles of the legal rules. Even the civil code allows that service contracts, e.g. labor relationships, can be given notice – latest after five years (§624 BGB). Nevertheless, the special situation of a private school is to be considered. Schools typically plan per school semi-year. Therefore, the parents argument of have a semi-annual notice period endangers the principal idea of the schooling contract is null and void.

The other argument of the parents was the school’s standard stipulation of giving notice to the calendar half year were improperly pushing through their own interests at the expense of the parents without duly considering the other party’s interests. This alleged violation of the rules on standard terms and conditions is also without significance. Employing this yardstick requires the determination and weighing of both party’s interests. Improperness will be assumed when the disadvantage of one partner is not justified by higher or at least equal interests – so ruling case law of BGH.

It is without question that canceling a school is a hard impact on the child’s education. They will lose their friends, adapt to new methods of teaching. Especially when having to change to a public school the significantly higher number of students in classes will turn out to be a drastic change. On the other hand, it is a private school’s main interest to achieve their educational goals. It is characteristic for a private school to have its own educational goals, its ideological values, teaching methods. This autonomous shaping of the lessons presupposes the school’s liberty to freely choose which pupils match the school’s expectations. This freedom of choice demands the necessity of the parents and pupils to amicably interact with the school. Whenever this prerequisite is lacking or ends, the school has the legitimate interest to dissolve the contractual relationship between the parties. The schools rights and interests weigh higher in this circumstance.

Last but not least is also to be considered that ruling case law of the BGH gives private schools, when lacking (valid) canceling clauses, the right to orderly cancel the contract to the end of each school year – pursuant to §§242, 157 BGB.  Against this background, it cannot be disapproved that a school puts exactly this rule from case law into their standard terms and conditions. This is just as much true when parents consider that the first chosen school does not match their expectations to end the contract at school year’s end and enable the child a seamless transfer to a different school.




Published on the old CMS: 2008/5/1
Read on the old CMS till November 2008: 2,599 reads