BGHZ 41, 271 Anti-Trust Senate (KZR 10/62)
02 April 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

[The plaintiff, a farmer with a large dairy herd, was bound by law to sell his milk, if at all, to the defendant dairy, which was required by provincial ordinance to pay less, by at least 2 pf. per kilo, for milk from a non-T.T. herd like the plaintiff's. Suppliers were informed by circular that as from 1 May 1957 the differential would be 3 pf., subsequently raised to 5 pf. and then to 10 pf. The plaintiff objected to these deductions but continued to supply milk, and now claims the sum of 4,040.91 DM as having been improperly deducted. The Landgericht rejected the plaintiff's claim and his appeal to the Oberlandesgericht was dismissed. On further appeal the judgment below was vacated, and the matter remanded to the Anti-Trust Senate of the Oberlandesgericht].


The Court of Appeal was wrong in law to hold that notwithstanding the plaintiff's written protests his conduct evinced a declaration of consent to the defendant's published deductions.

2. But this does not really help the plaintiff, since the Court of Appeal went on to say in relation to para. 315 BGB, that there was no need for the plaintiff to declare his consent to the deductions. This conclusion, at any rate, is supported by the following reasons:

(a) The 'dairy areas' laid down in para. 1 para. 1 of the Milk and Animal Fat Act (Milch-und Fettgesetz - MFG) determine which suppliers must deliver their milk to which dairy if they wish to sell it commercially at all. The contractual freedom of milk-producers is thus limited (Kontrahierungsbeschränkung): if they choose to dispose of their milk commercially they must deliver it to the specified dairy. For dairies, on the other hand, there is a total 'obligation to contract' (Kontrahierungszwant) (BGHZ 33, 259, 262): para. 1 para. 4 MFG not only removes their freedom to choose their suppliers but imposes on them an obligation to accept any milk tendered by the specified producers. In other respects, however, the rights and duties of milk producer and dairy regarding deliveries of milk remain unaffected by the provisions of para. 1 MFG. Their legal relations are of a private law nature, as the Court of Appeal correctly held. The dairy may be a co-operative or a so-called 'private dairy', but this is irrelevant so far as its legal relations with a non-member are concerned. The relations between members of a co-operative dairy and the dairy itself may be affected by the constituent document or by subsequent resolutions, but relations between it and a milk producer who is not a member depend on the general private law of contract just like the relations between a producer and a private dairy. The contracts between producer and dairy regarding milk deliveries are sale contracts in the sense of paras 433 ff. BGB. It is irrelevant, and therefore unnecessary, to decide whether a separate sale contract is made for the milk delivered on each occasion, as the Court of Appeal supposed, or whether this is a case of 'repeat obligations' (Wiederkehrschuldverhältnisse, reference omitted) or of a long-term supply contract as the appellant maintains.

(b) Before a sale contract can be formed the parties must agree on the purchase price or at any rate on a method of determining it. There is no legal obligations to deduct more than 2 pf. per kilo here, so to this extent the price paid for milk was dependant on the free bargaining of the parties. Given that bargaining is free, there are three obvious ways in which a contract could validly be made: if the price is expressly agreed between dairy and producer, if the price is determined unilaterally by the dairy and accepted by producers through appropriate conduct, or finally if the dairy is permitted, by either the express agreement or the implicit consent of the producers, to determine the price under para. 315 BGB. But a valid sale can also come about even if producer and dairy are at variance over the price or its determination by the dairy, and even if, as in the present case, the producer expressly contests the dairy's determination of the price. Realism dictates, as indeed to the interests of the parties in this case, that people who are bound by law to enter into lasting relations as supplier and purchaser of goods, as the parties are here by para. 1 MFG, should be treated as contractors, indeed as seller and buyer: otherwise they would be operating in a non-contractual framework, and the only rules to apply to their actions and obligations would be the provisions of paras 12 ff. BGB regarding the duty of restitution when there is no legal basis for an enrichment, rules which are not at all appropriate for such long-term relationships. Notwithstanding the failure of the present parties to agree on one point, namely an aspect of the purchase price related to the special factor of the source of the milk, it must be assumed, for it is in line with the will of the parties in other respects, that a contract came into existence, contrary to para. 154 para. B sent. 1 BGB, which is only a rule of construction. The lacuna in the contract must be filled in accordance with statutory provisions if the parties cannot agree among themselves (RGZ 60, 174, 178; other reference omitted). In a case like ours the idea underlying para. 315 BGB provides a method for filling the gap. Given the limitations on the freedom of contract imposed by para. 1 MFG and expressly recognised by the Law against Restraints on Competition (Gesetz gegen Wettbewerbsbeschränkungen - GWB) para. 100 para. 8, para. 315 BGB offers the best method of doing justice: para. 315 para. 1 recognises the just interests of the defendant by giving it the right to determine the price, and para. 315 para. 3 is designed to protect the just interests of the producer (for the application of para. 315 BGB in similar cases, see RGZ 111, 310, 313 (electricity supply contract), and BGHZ 38, 183, 186 (unfair terms in general conditions of business); see generally Lukes in NJW 1963, 1897 ff.) Since the dairy has a monopoly position it must treat its customers equally (reference omitted) and cannot be expected to adapt itself to the particular wishes of every individual supplier and pay him what he wants for his milk: it must have the right to fix what the contract has left open, unilaterally and in a fair and just manner, as set out in para. 315 para. 1 BGB. If the milk producer finds the dairy's unilateral determination unacceptable, he is sufficiently protected by para. 315 para. 3 BGB, for only if the dairy's determination is fair is he bound by it; if it is not, the determination is to be made by the court. To this extent the unilateral determination of the dairy is subject to contrary determination by the court.

3. The next step, as the Court of Appeal realised, is to see whether the defendant's 'industrial milk deductions', as published in its circulars, were equitable in the sense of para. 315 para. 3 BGB, and then to check whether in adopting them the dairy had not abused its monopoly position under paras 1 and 2 MFG and so infringed the requirement of good morals and ethical behaviour in the sense of paras 138, 826 BGB (reference omitted). In doing this, however, the court below applied too narrow a criterion, having inferred a general concept of abuse of monopolistic position from certain decisions of the Reichsgericht (RGZ 99, 107; 106, 386; 133, 388; 143, 24, 28), and furthermore, as the appellant rightly objects, it failed to consider whether the dairy had discriminated in breach of para. 26 para. 2 GWB.

(b) The producer may assert concurrently the rights which arise from para. 315 para. 3 BGB and from breach of para. 26 para. 2 GWB, as well as any other rights arising from paras 138, 826 BGB; independently of this, he can invite the anti-trust authorities to intervene under para. 22 para. 4 GWB in connection with para. 3 (reference omitted).

Nor is there any essential difference regarding the burden of proof in cases arising under para. 315 para. 3 BGB and para. 26 para. 2 (second alternative) GWB, for in the former case the party fixing the performance must prove that he has done so in an equitable manner, and in the later the business which has discriminated is required to prove that it had objective justification for so doing (references omitted). Thus there is no question, in a case like the present, of the court's fixing a 'just price' proprio motu, but simply of checking, from the point of view of para. 315 para. 3 BGB and para. 26 para. 2 (second alternative) GWB whether the party fixing the terms has established or proved that the terms he fixed (or any other terms which are to take their place) fall within the limits set by para. 315 para. 3 BGB and para. 26 para. 2 GWB.

Finally, the two provisions may give rise to similar remedies. While it is true that when the terms fixed by one party are not equitable, the determination under para. 315 para. 3 BGB is made 'by judgment', meaning a constitutive judgment, a claim for performance may also be brought, the performance claimed being the performance which would be due had the terms been fixed fairly (reference omitted); likewise, a claim for performance may be brought for what would have been due had there been no discriminatory conduct under para. 26 para. 2 GWB, at least where it is a question of indemnity under para. 35 para. 1 GWB and para. 249 para. 1 BGB (references omitted).

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