In this post I can finally bring together my two fields of interest law and skeptics. A brief warning : The following is a very preliminary review of a decision. In principle, one should assess judgments only when they have seen it. Since the ruling immediately to be discussed but not yet available in full text, I can refer me only to the official press release of the Federal Supreme Court. In general, I've written on my website ever heard on the evaluation of judgments . Read may be appropriate.
What is it?
Today, the Bundesgerichsthof a press release about a ruling of the 3rd Civil Division published. The press release can be read here . About Www.bundesgerichtshof.de page you can read in a few weeks, the full decision, which is useful in any case (Just search for the document number III ZR 87/10).
is the title of the press release, "Federal Court to claim compensation for Tarot" - a title that is promising. The case, to assess the the Bundesgerichsthof had, is unfortunately typical in the industry, even if the press release can not see, unfortunately. It may well be that the Supreme Court judges were not aware of this fact.
The case: The applicant has worked as a self-employed with business registration, and offers life advice ("life coaching"), said to give its advice based on the knowledge gained by card reading. In a life crisis, relationship problems caused by the defendant joined in September 2007 to the applicant. In the following years they put him on the phone in many cases different - personal and work - life issues the cards and gave advice. For this guarantee, the defendant in 2008, more than 35,000 €. For services rendered in January 2009 requires the applicant in its application € 6,723.50.
The decision
The Federal Court in its decision, first of all confirms what even the lower courts have decided. An effort that is directed to the provision of magical or supernatural services is objectively impossible. For this fact the Vorinstanzenzen had concluded that the applicant under § 275 paragraph 1 BGB of its obligation is free, but that after § 326 paragraph 1 sentence 1 BGB have no claim to consideration. These seemingly compelling conclusion but will not pull the Federal Court. Let us discuss the press release: "The Parties within the framework of freedom of contract and in recognition of their personal responsibility effectively agree that a side - for a fee - an obligation to provide benefits to their Principles and effects according to the findings of science and technology are not demonstrable, but only an inner belief, a faith that effect or an irrational, incomprehensible match for third position. "Paid for" someone such services in the awareness that the appropriateness and suitability of these services to achieve the desired him success rationally explainable, so it would object to the content and purpose of the Treaty and the motives and expectations of the parties, the compensation claim of indentured negative. In the circumstances of the case lies the assumption is not far away that the applicant according to the will of the parties . Agreed remuneration could claim despite the fact that the "suitability" of the service provided is not rationally demonstrable "However, he leaves Federal Court the defendant still - in his description of the facts is not very far away lying loophole: he believes that it is worth considering the specific contract to be regarded as immoral. In this connection should not be overlooked that make many people, such contracts are in a difficult situation and it is for them to gullible, inexperienced, or mentally unstable people. It seems probable in such cases not too high demands on a breach of the Good manners are made.
an initial evaluation ...
I - as I said - so far only know a press release, I can naturally only be here a few thoughts going on to assess the Enstcheidung but not really.
freedom of contract is certainly important. It is also quite strict argued that contracts must be precisely followed. So, if all agree that magic effect on scientific criteria, why are they there more may conclude any contract? Precisely this assumption but I have a problem. Anyone who thinks that a magician can see into the future, is wrong. He thinks he's just that can achieve the Magician with his means the promised success. The customer is therefore just not aware that he commits himself to an impossible service. If it is not so vulnerable? In particular, when you think of cases like this where the customer spends a significant portion of its assets for such superstitions. Whether it succeeds in all cases to achieve this protection through the verdict of immorality, would be doubtful.
A bright spot of the decision is above all that fortune tellers are not comfortable to rely on the legitimacy of their magic was confirmed by the Federal Court. In any case on Impossibility of performance leaves no doubt of the Federal Court. Nevertheless, one would have wished a decision that ultimately erring consumers better protection against the ruthless exploitation of their superstition, as it does this decision.
Addendum:
I'm not the only one who has ventured even to an assessment of the appeal. The Hamburg lawyer Dr. Jan-Peter Ewert commented on the blog GWUP with the following conclusion: "More difficult is the situation for victims of quacks, but it all". I can wholeheartedly agree.
And another addendum (23:26): Also, lawyer Udo Vetter sees on his Lawblog the matter critically. His striking headline: "Even hot air must be calculated . Especially the comments here are quite interesting.
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