Samstag, 7. Juli 2012

Umzug kann zur fristlosen Kündigung eines DSL Anschlusses berechtigen


AG München, Urt. v. 20.03.2007 – 271 C 32921/06
Man beachte die restriktive Rechtsprechung des BGH zum Ganzen: 
BGH, Urteil vom 11. 11. 2010 - III ZR 57/1

Tenor

Die Klage wird abgewiesen.
Die Kosten des Rechtsstreits trägt die Klagepartei.
Das Urteil ist vorläufig vollstreckbar.
Der Streitwert wird auf 360 € festgesetzt.

Entscheidungsgründe

Gemäß § 495a ZPO bestimmt das Gericht das Verfahren nach billigem Ermessen. Innerhalb dieses Entscheidungsrahmens berücksichtigt das Gericht grundsätzlich den gesamten Akteninhalt.

Die Klagepartei fordert von dem Beklagten Telekommunikationsentgelt aus einem am 30.12.2004 abgeschlossenen und am 27.06.2005 abgeänderten Telekommunikationsdienstvertrag über einen DSL-Anschluss. Der Beklagte hat diesen Vertrag jedoch wirksam gekündigt, da die Klagepartei zur Leistungserbringung nicht in der Lage war.

Unstreitig hat der Beklagte den Telekornmunikationsdienstvertrag gegenüber der Klagepartei gekündigt. Hintergrund war, was die hierzu gehörten Zeugen W bestätigten, ein Umzug in eine neue Wohnung von Landshut nach Achering. An diesem neuen Wohnort konnte die Klagepartei die von ihr vertraglich zugesicherten Leistungen unstreitig nicht erbringen, weshalb dem Beklagten ein Kündigungsrecht zustand.

Ob und in welcher Weise dies die Beklagte gegenüber der Klagepartei mitgeteilt hat, war nicht unter Beweis zu stellen, da die Mitteilungspflicht gem. § 626 Abs. 2Satz 3 BGB nur auf Verlangen besteht und zudem bei Nichterfüllung nicht zu einer Unwirksamkeit der Kündigung führt (BGH, NJW 1984, 2689).

Die Klagepartei, die zu ihrer Leistung nicht im Stande ist, hat somit auch keinen Anspruch auf die Gegenleistung hierfür.

Die Kostenentscheidung folgt aus § 91 ZPO. Die vorläufige Vollstreckbarkeit richtet sich nach §§ 708 Nr. 11, 713 ZPO, die Streitwertfestsetzung nach § 3 ZPO, § 63 Abs. 2 GKG.

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