BGH NJW 1965, 387 VIII. Civil Senate
16 December 1964
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Tony Weir
Professor B.S. Markesinis

B. I. The Court of Appeal held that, from 1 August 1959 when the defendant's buses started to use the bus station, a contract for the use of the bus station against payment, a contract of private law, had existed between the parties. The defendant knew from the time it had previously used the bus station in the summer of 1956 (admittedly for another route, but that was immaterial), that the plaintiff exacted a fee for its use. Its renewed use of the bus station since 1 August 1959 was therefore in the full knowledge and consciousness of the legal implications of its conduct. By using the bus station it accepted the plaintiff's offer of a contract; the plaintiff having in the circumstances waived the need for the declaration of acceptance to reach it. Furthermore, a contract was also formed under the principles of the factual contractual relationship (faktische Vertragsverhältnis) for which it was not necessary that the defendant should have refused to make any payment for using the bus station.

The Court of Appeal proceeded to say that it was quite lawful to make a private law charge for the use of the bus station, for the use in question was not just a public use, but a special use, given the facilities which had been provided near the station and the circumstances in which the use was taking place. The judges viewed the area and confirmed that the use being made by the defendant went beyond public use. The bus station was entirely different from the normal bus stops and simple stopping bays which are in public use, for it was equipped with all the advantages of platforms, bus lanes, the timetable board, the waiting room with its refreshments and the toilets.

II. The appellant has not successfully impugned these views.

1. In principle no one need pay for making use of public property (BVerwGe 4, 342, 345 - NJW 1957, 962). But if the owner of a public thing wishes, consistently with it being used by the public, to afford a kind of user which goes beyond public use, a so-called special use, he can, in the absence of statutory regulation, make such use conditional on the user's contracting to pay a fee for it. This is in line with our previous holdings (BGHZ 19, 85, 92; BGHZ 21, 319, 330).

2. The appellant accepts that it was making a special use of the bus station and its facilities, but maintains that it did not contract for this special use. It wanted to make use of it like the general public; it never asked for special use; the special use was forced on it against its will by the plaintiff; and it is a principle of the private law of obligations that no contract can arise unless the recipient of an offer is willing to accept it. We disagree.

(a) The Court of Appeal held, as a subsidiary argument, that when the essentials of life are being provided on a large scale, a contract arises from the mere acceptance of such a service, just because it is typically social behaviour. On this view it would be irrelevant whether or not the defendant intended to accept the special usage afforded to it by the plaintiff. supporters of this doctrine do not regard the factual public offer of a service and the factual acceptance of this service as constituting declarations of intention which trigger given legal consequences, but as congruent conduct whose typical social significance produces the same rights and duties as a transaction at law. The basis of the obligations lies in the opinio juris that a person who acts in this socially typical manner, by knowingly and willingly accepting or using a service, thereby becomes bound in law regardless of whether he entertained or expressed any intention to be so bound (Larenz, NJW 1956, 1897). We need not adopt any position regarding this concept of a 'contract arising through socially typical conduct' nor consider the appellant's objection to it that it is inapplicable on the facts of the case before us, for even the adherents of the traditional view that no contract can come about unless there are matching declarations of will concede that the normative force of general practice can attribute to 'typically social' conduct the import of a true declaration of will. In particular, when one accepts an essential service it is not the will of the individual that is the significant feature, but the standard implications of his conduct: there is no room for the individual will here, so it recedes into the background. In construing the declaration of will which the acceptance of such a service entails, the intention of the particular individual no longer counts. If a person so conducts himself that in accordance with good faith and general practice he can only be understood as expressing a certain intention, his verbal disclaimer of such a meaning of his conduct can be ignored. His words are contradicted by his acts (protestatio facto contraria); through his own conduct he has forfeited any other construction (references omitted).

On either of the views state, it follows from the facts, as conclusively found by the Court of Appeal, that the defendant knew that the plaintiff insisted on payment for the use of the bus station, that the defendant used the bus station in this knowledge, and that such use is, in accordance with normal practice, treated as an expression of agreement, and that it is irrelevant that the defendant did not wish to enter into any contract with the plaintiff regarding the use of the bus station, or even that he expressly objected to doing so.

Nor did the defendant's notice of termination free him, as the appellant maintains, from any contract which arose. In a case like this, a declaration of termination is futile. The defendant did not want to stop using the bus station, but to carry on using it, as in fact it did. A notice of termination by the defendant would, like its declaration that it was unwilling to contract, be contradicted by its actual behaviour.

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