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Samstag, 7. Juli 2012

AG Ulm: AGB Klauseln von DSL Anbietern müssen Kündigungsrecht bei Umzug des Kunden vorsehen

AGB Klauseln von DSL Anbietern können gemäß § 307 Abs. 1 BGB insbesondere dann unwirksam sein, wenn sie nicht auch für den Fall des Umzuges durch den Kunden in ein von dem Anbieter nicht erschlossenes Gebiet ein kurzfristiges Kündigungsrecht des Kunden vorsehen. 

Redaktioneller Leitsatz zu
AG Ulm, Urt. v. 23.05.2008, AZ: 2 C 211/08
Man beachte die restriktive Rechtsprechung des BGH zum Ganzen: 
BGH, Urteil vom 11. 11. 2010 - III ZR 57/10   

Tenor

1. Die Klage wird abgewiesen.
2. Die Kosten des Rechtstreits trägt die Klägerin.
3. Das Urteil ist vorläufig vollstreckbar.
Streitwert: 121,00 EUR

Tatbestand


Mit Auftrag vom 26.04.2006 beantragte die Beklagte bei der Klägerin einen Telefon- und DSL-Anschluss „ Maxi“, welchen die Klägerin mit Auftragsbestätigung vom 28.04.2006 bestätigte. Als Mindestlaufzeit wurden 24 Monate vereinbart.

Am 09.01.2007 kündigte die Beklagte zum 20.01.2007 wegen ihres bevorstehenden Umzuges am 20.01.2007 nach W.. Gleichzeitig widerrief die Beklagte die Einzugsermächtigung. Die Klägerin bestätigte mit Schreiben vom 12.01.2007 die Kündigung zum 16.05.2008.

An dem neuen Wohnort der Beklagten ist ein Anschluss an die Telekommunikationsdienste der Klägerin nicht möglich.

Die Klägerin macht mit der vorliegenden Klage die ab 21.01.2007 bis 16.05.2008 die angefallenen Bereitstellungs- und Verbindungsentgelte in Höhe von 50 %, mithin 118,79 EUR geltend, zuzüglich 3,00 EUR Rücklastschriftgebühr. Darüber hinaus beantragt die Klägerin Inkassokosten sowie vorgerichtliche Rechtsanwaltskosten.

Die Klägerin ist der Auffassung, der Umzug der Beklagten könne nicht zu Lasten der Klägerin gehen, dies ergebe sich auch aus den allgemeinen Geschäftsbedingungen der Klägerin Ziffer 5.5, welche die Beklagte bei Abschluss des Vertrages anerkannt habe.

Die Klägerin beantragt,
1. die Beklagte zu verurteilen, an sie 121,79 EUR nebst Zinsen in Höhe von 10 % hieraus seit 01.,09.2007 zu bezahlen;

2. die Beklagte zu verurteilen, der Klägerin entstandene Nebenkosten in Höhe von 43,50 EUR und nicht festsetzbare Rechtsanwaltskosten in Höhe von 19,50 EUR zu bezahlen. 

Die Beklagte beantragt,
die Klage abzuweisen. 

Die Beklagte ist der Ansicht, sie habe den Vertrag wegen Umzugs fristlos gekündigt. Dies stelle einen wichtigen Grund für die Kündigung dar, nachdem an dem neuen Wohnort der Beklagten die Klägerin die vertraglich vereinbarten Leistungen nicht mehr zur Verfügung stellen kann.

Mit dem Umzug sei die Geschäftsgrundlage weggefallen, zudem habe die Klägerin im telefonischen Gespräch ein Sonderkündigungsrecht wegen Umzug eingeräumt. Die AGB-Regelung Ziffer 5.5 sei unwirksam, da diese die Beklagte unangemessen benachteilige.

Wegen weiterer Einzelheiten des Sach- und Streitstandes wird auf die zwischen den Parteien gewechselten Schriftsätze nebst deren Anlagen Bezug genommen.

Entscheidungsgründe

Die zulässige Klage hat in der Sache selbst keinen Erfolg.

Die Klägerin hat keine weiteren Zahlungsansprüche, da die Beklagte den Vertrag wirksam zum 20.01.2007 kündigte.

Zwar sieht Ziffer 5.5 der allgemeinen Geschäftsbedingungen der Klägerin vor, dass der Kunde bis zum Ablauf der Vertragsdauer zur Weiterentrichtung des vereinbarten monatlichen Bereitstellungsentgelts abzüglich der Klägerin hierdurch ersparten Aufwendungen verpflichtet bleibt, wenn der Kunde aus einem in seiner Person liegenden Grund an der Nutzung der vertraglichen Leistung gehindert (z.B. Umzug) sei oder der Zugang zu den vertraglichen Diensten von der Klägerin berechtigt ganz oder teilweise gesperrt wurde.



Diese Klausel erhält hinsichtlich des genannten Umstandes eines Umzugs des Kunden der Inhaltskontrolle nach § 307 Abs. 1 BGB nicht stand. Der Umzug wird angeführt als Beispiel für einen in der Person des Kunden liegenden Grundes, ohne jedoch zwischen einem unverschuldeten und verschuldeten Umstand zu differenzieren.

Vorliegend ist zwar der Umzug von der Beklagten vorgenommen worden, diese wäre jedoch an ihrem neuen Wohnort durchaus bereit und in der Lage, die vertraglichen Leistungen der Klägerin zu nutzen, dies ist jedoch aufgrund des nicht erschlossenen Gebietes mit dem klägerischen Netz nicht möglich. Wird für diesen Fall jedoch dem Kunden kein schriftliches Kündigungsrecht zugestanden, bedeutet dies eine unangemessene Abwälzung der Sach- und Gegenleistungsgefahr in den allgemeinen Geschäftsbedingungen und damit eine unangemessene Benachteiligung des Kunden. Damit ist diese Klausel gemäß § 307 Abs. 1 BGB unwirksam, wenn nicht auch für den Fall des Umzuges durch den Kunden in ein von der Klägerin nicht erschlossenes Gebiet ein kurzfristiges Kündigungsrecht des Kunden vorgesehen wird. Ein solches Kündigungsrecht räumen die Vertragsbedingungen der Klägerin in der hier geltenden Fassung dem Kunden nicht ein.

Der Beklagten ist im vorliegenden Fall ein außerordentliches Kündigungsrecht zuzugestehen, welches diese wirksam mit Schreiben vom 09.01.2007 zum 20.01.2007 ausübte. Der Dienstleistungsvertrag zwischen den Parteien ist mithin wirksam zum 20.01.2007 beendet, so dass der Klägerin ab diesem Zeitpunkt keine weitergehenden Zahlungsansprüche zustehen.

Die Klage ist daher abzuweisen.

Die Kostenentscheidung folgt aus § 91 Abs. 1 ZPO; die vorläufige Vollsteckbarkeit hat ihre Rechtsgrundlage in §§ 708 Nr. 11, 711, 713 ZPO.

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