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- Created on Thursday, 12 February 2009 17:41
- Last Updated on Friday, 28 December 2012 18:40
Contracts from Cold-Calls are Null and Void!
Annoying isn't it. You are watching TV and all of sudden you get a call from some person you have never met before and they are so kind to "persuade" to buy their sweepstake tickets. Is this permissible? OLG Stuttgart judged on this on August 26, 2008 (re 6 W 55/08).
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The operator of a call center sued her contractor for unpaid services. As both parties unanimously stated, call center lady had to contact consumers by phone to close a contract out with having their previous consent. Contacting a person via phone without his prior request, is dubbed "Cold Calls".
Contracts that are to be closed by so-called "cold calls" violate the statute and are therefore void. The rules of unfair competition have been broken, especially undue harassment (§11 II UWG). This is the court's clear verdict. The result of this verdict is that the suing call center has no claims against its contractor because §134 BGB determines the contract to be void. The contract needed the employees of the call center to systematically violate rules of unfair competition law which also is intended to protect the consumer.
However, this ruling applies only to the legal relationship between the call center and its clients. The sales made with the consumers via the unsolicited phone calls are not affected and are fully valid. However, such calls are illegal and can be admonished. Admonishment means that you can demand "cease and forbearance" from that business and per temporary injunction easily sue them in court. However, such calls might fall under the rules of distance contracting. In other words, you might have a chance to cancel the contract.
