Legal information credit card judgments

. Pecuniary claim of the contract enterprise against the credit card enterprise in accordance with?. "signature on file" does not presuppose 780 BGB on the achievement voucher in the so-called note, if the contract enterprise the signature of the orderer, approximately with telephone or by E-Mail?rmittelten orders, is not present. The Kl?rin, which operates a versandhandel f?Geschenkartikel as well as silver and decoration goods, takes as contract enterprise Acquiring enterprise of the credit card trade (in the following: Deplored) on payments f?Kreditkartengesch?e in. The deplored one desires refunding already performed payments with the counteraction. The parties closed f?die EUROCARD/VISA acceptance in the Mailorder in July 2001 among other things a service agreement/. after the which are the basis general Gesch?sbedingungen of the deplored ones (in the following: AGB) is obligated to owners of such credit cards goods immediately by transfer f?igen demands of the contracting party the Kl?rin, against map owners, who were begr?et under indication of the card number and the G?igkeitsdauer of the map, under the conditions on, da?der contracting party name and address of the map owner, its card number and G?igkeitsdauer of the map, the calculation total amount and the authorizing number on the achievement voucher, which can be given from the deplored one to, erfa?, whereupon the instruction "signature on file" notes and the Kartenums?en "ausschlie?ich Rechtsgesch?e?r achievements in the context of the Gesch?sbetriebes of the contracting party. With Nichterf?ung one of these conditions is the deplored one. 4 their AGB not for refunding the demand on under the reservation of the R?belastung or accounting within. Kartenums?e become the deplored one the transaction data gem?Nr. To keep documents?r the electronically?rmittelten Ums?e and the which are the basis Gesch?e 12 months from the transaction date and the deplored one on demands to the Verf?ng too. the contracting party let 3 the AGB authorize each map conversion electronically on-line. The contracting party "steps" the demands against map owners, "using a map of gem?dieser agreement begr?et. 3 the AGB the claim amount abz?ich the agreed upon, in the May lord he procedure erh?en Servicegeb? of 3,9%. the deplored one already dependent Kartenums?e may do 4 the AGB r?belasten, "if itself the map owner refuses paying the invoice amount because he denies, the Rechtsgesch? with the contracting party finally. In a self information, the condition f?die counter signature of the service agreement by the deplored one was, indicated the Kl?rin to drive gift articles out within Germany. The Kl?rin?rmittelte the deplored one in the time?rmittelt from 30 June 2002 on electronic way the transaction data of nine orders, those from customers from Indonesia under indication of the numbers and expiration dates of credit cards by E-Mail. The deplored one, which had authorized the Gesch?e on the previous request of the Kl?rin, the?rwies Kl?rin the Forderungsbetr? abz?ich the Servicegeb? and 07., however no refunding received value added tax,319, from the map owners ans?igen in the USA and Italy, because these those. It makes a R?erstattungsanspruch, with which they durchgef?ten valid against demands of the Kl?rin from others, objection-free against the Kl?rin. The Kl?rin takes the deplored one on payment of 6. Against-complaining the payment requires interest in requirement the deplored one of. The regional court rejected the complaint and essentially allowed to the counteraction. Industrial tribunal has the complaint in H? of 1. and it in the?igen, just as the counteraction, rejected. Industrial tribunal certified revision erstrebt the deplored one with the Anschlu?evision their complaint request in full H? further. Revision and Anschlu?evision are begr?et. the contested judgement and to the Zur?verweisung of the thing to that. The industrial tribunal has to the Begr?ung of its decision in. The deplored one is obligated due to the service agreement under Ber?sichtigung of a contributory negligence of the Kl?rin from 1/3 to refunding of 2/3 the Kartenums?e. R?zahlungsanspr?e of the deplored ones best?en therefore not. The Kl?rin versto? approximately. 242 BGB, if it makes the inefficacy of the service agreement valid because of their missing signature. It stamped and to the deplored one sent the form for contract, just as the self information signed by it ausgef?t. The parties h?en its Gesch?sbeziehung l?ere time on that. General Gesch?sbedingungen of the deplored ones f?das. Since the Kl?rin is as GmbH a buyer, towards? f?die inclusion the reference to the general Gesch?sbedingungen, given with Abschlu?der service agreement. The deplored one k?e destined to it, the decoration supplies to Indonesia do not w?en themselves not from the service agreement erfa?, because the Kl?rin indicated a selling of gift articles in its self information only within Germany. Foreign purchase and the selling of decoration were evident f?die deplored ones sp?stens during the zahlungsabwicklung, because the parties already before comparable Auslandsgesch?e completed. The regulation contained in the general Gesch?sbedingungen of the deplored ones, da?im May lord he procedure a R?belastung take place, if the map owner lodges a complaint within six months the commodity to have received is in accordance with?. 9 AGBG ineffectively in principle a requirement of the Kl?rin against the deplored one. The requirement is to be answered in the negative also not, because the Kl?rin on the achievement vouchers registered neither the names and addresses of the map owners still the note "signature on file". Names and addresses of the map owners know the contract entrepreneur when mi?r?hlicher using the map by unauthorized third. The note "signature on file" is one blo? Formalie, some Kreditkartenmi?rauch do not prevent k?e. Contract entrepreneurs the credit card enterprise the load voucher not already during the account, but only with a complaint of the map owner submit m?e, have order in accordance with? Ausf?ung of the voucher no true protective function. The Kl?rin does not only have the deplored one the achievement vouchers, but also the expressions of the enamels, which contained the orders?rsandt. Expression brought, da?ihr no original signature is present. The claim for damages of the Kl?rin is in accordance with?. to reduce 254 BGB, because they are by leichtgl?ige acceptance of the credit cards to from Indonesia and in bad English verfa?. h?en throughout central to hochpreisige articles (805. bis.050.) ordered and in short Abst?en further orders. Always vollst?ige names were indicated. Customers before were unknown the Kl?rin. Kl?rin the communicated data in detail?rpr?n or a completion of the Gesch?s in the May lord he procedure do not reject m?en. the internationalization of the Gesch?s by InterNet and E-Mail traffic zwangsl?ig to contacts with unknown, financially strong customers from far L?ern f?e and the price level of the accounted for orders in the decoration trade ungew?lich are, are a contributory negligence of the Kl?rin in H? to assume from 1/3. As far as the industrial tribunal of the complaint allowed and rejected the counteraction, its Ausf?ungen keep legal. The view of the industrial tribunal, which is complaint partly begr?et, because the Kl?rin a claim for damages is entitled, is. With the complaint no claim for damages becomes. The Kl?rin deduces no more Anspr?e from the nine streitgegenst?lichen Gesch?en. Anspr?e from this Gesch?en are after the legal mistake-free and unangegriffenen statements of the industrial tribunal in full H?.319,07. erf?t by payments of the deplored ones. Thus also the Begr?ung, with which the industrial tribunal rejected the counteraction, is the basis extracted. Industrial tribunal has to that extent, without the which are possible requirement bases too er?ern, only on the obligation of the deplored ones for refunding of 2/3 the streitgegenst?lichen. This is, as erf?t stated, already. The appointment judgement does not place itself from other Gr?en than. The Kl?rin makes demands from others with the complaint. circumstances which can be legend are these demands by the set-off with R?erstattungsforderungen, erkl?e of the deplored one, expired the counteraction is due to the remaining part this. A) Counterclaims of the deplored ones result however against the view of the revision neither out. expressed, da?das Vertragsverh?nis between a credit card enterprise and a contract enterprise does not repeat 437 exp. as forderungskauf, but when abstract acknowledgment of debt is to be regarded. 857, 859), and da?Klauseln in general Gesch?sbedingungen of. , did contract enterprises deplore verschuldensunabh?ig with the full risk of a mi?r?hlichen use of the credit card by unauthorized third in the so-called May lord he procedure do load. to it h? the senate also under Ber?sichtigung of the Ausf?ungen of the revision firmly. b) However a requirement stands for the deplored one in accordance with? after circumstances which can be legend at the basis in appeal proceedings. 812 exp. your payments on the streitgegenst?lichen Gesch?e took place without argument, because the Kl?rin no requirement gem?Nr. 3 the AGB on these payments had. aa) however the parties have the validity of the AGB f?das May lord he procedures, regardless of the missing signature of the Kl?rin on the service agreement f?das May lord he procedures. an inclusion of the AGB into the contract arrange themselves, there the Kl?rin as Unternehmerin in the sense of the. 14 exp. acted, not after. 2 AGBG (. 24 sentence 1 AGBG), but after. The parties have thereby, da?sie after the legal mistake-free statements of the industrial tribunal?r 100 transactions in the May lord he procedure for gegen?r the Pr?nzgesch? do Servicegeb erh?en? from 3,9% accounted for, to the expression, da?sie on contractual basis in the May lord he procedure Gesch?e brought to durchf?en to want. Kl?rin au?r the AGB f?das Pr?nzgesch? also the AGB?rsandt f?das May lord he procedures, is insignificant, because this AGB of the Kl?rin anyhow easily zug?lich been w?n and their. bb) the requirement of the Kl?rin does not oppose, da?die achievement vouchers were not vollst?ig ausgef?t. 2 the AGB grunds?lich not the collecting main is ordnungsgem?r achievement vouchers, but only the electronic?ermittlung the transaction data necessary. Nevertheless the obligation to pay of the deplored ones develops gem?Nr. 3 the AGB only, if the contract enterprise with the help of POS-Terminals order in accordance with? Achievement vouchers provides. Contract enterprise inadequately, but does not write one specialin accordance with? Documentation of the completed Gesch?e forwards, which are ben?gt in particular for the treatment of any complaints of a map owner (senate, judgement of 16. (2) the missing indication of the name and the address of the map owner does not stand for the obligation to pay of the deplored ones on that. Since the contract enterprise does not know the name and the address of the true map owner when mi?r?hlicher using the map by unauthorized third, the st?e denial of a obligation to pay of the deplored ones in this case in a valuation contradiction for the inefficacy of the Mi?rauchsklausel of the NR. (3) also the missing note "signature on file" ber?t those the AGB f?das May lord he procedures intended is and those grunds?lich a necessary condition of the obligation to pay of the credit card enterprise represents (senate, BGHZ 157, 256, 266 and needed noted in the available case not on the achievement vouchers. After the undisputed representation of the deplored ones the Vertragsh?ler with this note, da?ihm the signature of the orderer, best?gt approximately on a written order, is present. Best?gung could not deliver the Kl?rin, because you had been?rmittelt the orders by E-Mail without signature and the signatures of the orderers were not present also otherwise. Best?gung "signature on file" w? been contentwise unfounded and could not be delivered thus. 2 orders by telephone or by E-Mail ausdr?lich plan, are therefore in accordance with?. to design, da?die obligation to pay of the deplored ones also without the note "signature on file" for the achievement vouchers develops for 5 AGBG there, if like here orders are?rmittelt by E-Mail and the contract entrepreneur the signatures of the orderers not to be present. CC) However da?die Kl?rin opposes the obligation to pay of the deplored ones due to the streitgegenst?lichen Gesch?e against its self information not gift articles within Germany after circumstances which can be legend at the basis in appeal proceedings, but decoration to Indonesia supplied. 3 the AGB f?das May lord he procedures presupposes the obligation to pay of the deplored ones, da?dem map conversion a Rechtsgesch? ?r achievements in the context of the Gesch?sbetriebs that. Article and extent of the Gesch?sbetriebs, f?den the parties the service agreement?r the May lord he procedure closed, result from the "self information and Erg?ung to the May lord he and/or. The self information positively gepr?e of the deplored one was, as from its contents follows, a condition f?die counter signature of the service agreement by the deplored ones becomes clearly, da?die self information not only the information of the deplored ones, but the obligatory definition of the Gesch?sbetriebes and thereby, erfa?en of the service agreement, the connected industry and l?erabh?igen financial risks. The streitgegenst?lichen Gesch?e geh?n not to in that. On the sales of gift articles of arranged Gesch?sbetrieb umfa? after opinion of traffic not the trade with valuable decoration. Supplies to Indonesia contradict the self information, in which the Kl?rin only a selling did not make use indicated in Germany and of the M?ichkeit to mark or other L?er indicate as area of distribution Asia. The deplored one is not prevented after circumstances which can be legend at the basis in appeal proceedings to appoint itself to the substantial deviations of the streitgegenst?lichen Gesch?e from the self information to. It knew, differently than the industrial tribunal means, not on the basis the documents of fr?rer transactions to recognize, da?die completed Gesch?e of the self information did not deviate took place electronically, the deplored documents?r the sold products and the areas of distribution was not submitted. C) A claim for damages is entitled to the deplored one because of positive violation of contract after circumstances which can be legend at the basis in appeal proceedings furthermore, because the Kl?rin itself despite substantial suspicious factors against the orderers care-adversely on that. Thus it hurt its contractual Nebenpflicht gegen?r the deplored one not to sch?gen, whose Verm?n with the Vertragsdurchf?ung, fahrl?ig (see aa) the industrial tribunal f?t, although in other legal connection, legal mistake-free out, da?die streitgegenst?lichen orders with the Kl?rin the suspicion of a Mi?rauchs that. It did not only concern the first and verh?nism?g expensive orders so far unknown quantities. Auff?ig was also, da?einzelne customers their names had only unvollst?ig indicated and before the endg?igen completion of the first payment further orders gave up these suspicious factors was recognizably with a substantial risk connected the decoration supplies to Indonesia. Kl?rin cause to catch up and refrain, as far as these not m?ich were or remained without result, from the acceptance of the credit cards in the May lord he procedure inquiries?r the orderers and bb) the claim for damages of the deplored ones are after circumstances which can be legend at the basis in appeal proceedings in accordance with?. 254 exp. BGB reduced, because the deplored one, what it misjudged the industrial tribunal, its obligation, before payments to the Kl?rin?ereinstimmung from orderers and map owners to pr?n (senate, BGHZ 157, 256. the Kl?rin has the deplored one according to the regulation of the. 2 the AGB of the deplored ones no achievement vouchers with the names of the orderers?rsandt, but only transaction data, to which the names of the orderers do not geh?en. accounting procedure knows itself the deplored one of its obligation, before which payment to the contract entrepreneur?ereinstimmung from orderer and map owners do not extract too pr?n, but obligated to plan also in the accounting procedure with the help of POS-Terminals the report of the names of the orderers to erm?ichen and thus a Identit?pr?ng. Sorgfalts and control obligations, without whose Erf?ung -, in particular the May lord he procedure with its in great quantities resulting Gesch?svorg?en can function to credit cards not zuverl?ig (senate, judgement of 16. The deplored one the h?e Kl?rin therefore already before their payment on the first streitgegenst?liche Gesch? whereupon do not refer to m?en, da?die credit card from their entitled owner, but used by third was. Whether thereby the damage due to the first Gesch?s still h?e is prevented k?en and whether not locked h?e does not have the Kl?rin further Gesch?e with the same orderer as well as the streitgegenst?lichen Gesch?e with other orderers from Indonesia, any more, the industrial tribunal. On the revision therefore the appointment judgement was to waive (. 562. 1 ZPO) and the thing for new negotiation and decision to the industrial tribunal zur?zuverweisen (. 563 exp. so far for the disadvantage of the deplored ones recognized is. Enriching and the claim for damages of the deplored ones are. The Kl?rin spoke the deplored one before Vertragsschlu?m?lich to it to have referred da?sie with gift articles, silver and decoration goods acts and schwerpunktm?g Auslandsgesch?e. The deplored one has it thereupon suggested calling the acted products gift articles rechtsgesch?liche agreement, on whose basis the streitgegenst?lichen Gesch?e in the context of the Gesch?sbetriebs of the Kl?rin l?n and a obligation to pay of the deplored ones begr?eten. Therefore the proofs for this begun are to be raised. If after the result to this hearing of evidence no requirement for enriching is entitled to the deplored one, will the industrial tribunal have to determine to the requirement because of positive violation of contract, if necessary after erg?endem party lecture, whether being to blame for the deplored ones f?die emergence of the damage, only in H? the purchase price and any of forwarding expenses carried of the Kl?rin it exists, (partly) became miturs?lich abzuw?n to what extent the damage was predominantly caused of or other party (. 254 Abs. The Anschlu?evision, which concerns the same counterclaims of the deplored ones as the revision, is zul?ig (see the Anschlu?evision is also begr?et. further pursued part of the demand for complaint begr?et is h?t, just as the decision?r the revision, of it off whether and to which extent the demands, on which the deplored one up-counted to waive. therefore was also on the Anschlu?evision the appointment judgement. 1 ZPO) and the thing for new negotiation and decision to the industrial tribunal zur?zuverweisen (. 563 Abs.