BGHZ 60, 14 VII. Civil Senate (VII ZR 239/71)
30 November 1972
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

On 30 January 1970 the defendant telephoned the plaintiff's travel agency and booked a package holiday in Tenerife for his five-member family from 5 to 19 February 197O at a price of DM 5,142. The next day the defendant learnt that by reason of an outbreak of smallpox in Germany, the Spanish authorities had made entry to territory under Spanish sovereignty conditional on possession of a vaccination certificate. He consulted a doctor about his four-year old daughter who suffered from bronchitis, and the doctor advised that she should not be vaccinated, so on 2 February the defendant cancelled the booking. That very day the flight-organiser, T. GmbH & Co. XG, billed the plaintiff by so-called Stornogebllhr for DM 3,945. The plaintiff now claims payment of this sum with interest.

The Landgericht allowed the claim and the Oberlandes-gericht substantially dismissed the defendant's appeal. The defendant was given leave to appeal further, but that appeal is now dismissed.


I. The Court of Appeal held that performance of the travel contract was rendered permanently impossible by the defendant's decision not to have his family vaccinated. The date and destination of the trip being fixed, performance of the contract could not be deferred. The plaintiff, however, could claim the proper fee under para. 324 par. 1 BGB since the defendant was responsible for the circumstance which rendered performance impossible. The area of responsibility of the respective parties under this provision was to be determined by the principle of good faith in relation to the purpose of the contract. In the case of a travel contract it is the traveller's business to see that he satisfies the personal requirements for the fulfilment of the trip, He and members of the family travelling with him must be in sufficient health to make the planned trip, and must also satisfy any health requirements involved. Thus although the defendant was not at fault in not letting his daughter be vaccinated, he was responsible for the obstacle to performance which her non-vaccination presented. The Court of Appeal held that the quantum of the plaintiff's claim was not yet ripe for determination, so it simply decided on its bien-fondé.

II. The appeal must be dismissed.

1. The Court of Appeal proceeded on the assumption that the contract between the parties was a contract of services (Werkvertrag). This accords with the prevalent view in the cases and is correct in law (references omitted).

2. The Court of Appeal was right to treat the travel contract between the parties as an absolutes Fixgeschäft (references omitted) where the time of performance is so critical that once it has passed, not only do the consequences spelled out in para. 361 BGB ensue, but performance becomes permanently impossible. Contrary to the view of the appellant, this is the case with a trip like the one here, which must take place within a specified period of time.

3. This case is one of subsequent impossibility, since the plaintiff's performance was rendered impossible by an event which occurred after the formation of the contract, namely the decision of the Spanish authorities that German tourists should not enter Spanish sovereign territory without proof of vaccination, and the refusal of the defendant to have his family vaccinated. This meant that they could not land on the island of Tenerife, which is Spanish.

4. The defendant is not to blame for this impossibility, since it is agreed that his child's acute bronchitis made her vaccination inadvisable. This affected the whole family, for the trip was an outing for the whole family of five and was booked as such. In a case like the present, the obstacle to performance, though inhering in only one of them, affected the whole family, especially as that one was a child of four. The defendant therefore cannot be blamed for having cancelled the whole trip, although vaccination was possible for everyone except the youngest daughter.

5. Contrary to the view of the respondent, para. 324 par. 2 BGB is not applicable, because the defendant was not in delay in accepting the offer of performance. para. 297 BGB provides that the creditor is not to be taken as being in delay in accepting performance when the debtor's performance is impossible. That was the case here, since the defendant's daughter could not be vaccinated and could not go unvaccinated to Spain.

6. According to the Court of Appeal, it is not only blameworthy conduct a creditor 'is responsible for' under para. 324 par. 1 BGB, but any obstacle whatever to performance which falls within his 'area of risk'. In order to determine the area of risk within which a contractor is unconditionally responsible, one must examine the purpose of the particular contract in the light of the principle of good faith. We need not decide how far, if at all, we can accept this view, for the obstacle to performance here in issue is covered by special provisions relating to contracts of services. The legal idea underlying para. 645 par. 1 sent. 1 BGB must be applied by analogy to a case like the present, where one of the travellers cannot meet official health requirements unexpectedly imposed. This paragraph provides that when a contractor cannot execute the contractual work by reason of a defect in materials supplied by his customer, and there is no concurrent cause for which the contractor is responsible, he can only claim a proportional part of the fee for the work he has done and an indemnity for extra expenses not included in the fee. The general view is that para. 645 par. 1 sent. 1 BGB is a special rule apportioning the legal risk at least where the work is rendered impossible. The view of Berten (reference omitted) that this provision only applies to cases where the work due could be performed later is unacceptable. It is contrary to the unequivocal wording of the text ('has become impossible to complete'), and there is no support for it in the travaux preparatoires. para. 645 par. 1 sent. 1 BGB is a special provision which, within its area of application, ousts the general rule in paras 323 ff. BGB, as, indeed, this court has already held.

The effect of paras 323 ff. BGB in application to contracts of services is that the contractor runs the risk of not getting any fee unless his customer is responsible for the impossibility (para. 324 BGB). para. 644, 645 par. 1 BGB modify this rule in certain cases by dividing the risk between the parties rather than putting on one or other of them the entire risk of paying or not getting paid. If the customer is at fault, his further liability remains, because para. 645 par. 2 BGB brings para. 324 BGB back into play. Thus para. 645 par. 1 sent. 1 BGB remains as an exception to para. 323 BGB as well as to para. 324 BGB (reference omitted). It softens the provision of para. 323 BGB which bears harshly on the contractor (as does para. 644 par. 1 sent. 1 BGB) without putting on the customer the full risk of paying the fee as provided in para. 324 BGB. Provided neither party is at fault, the way para. 645 par. 1 sent. 1 BGB allocates the risks, even those closer to the customer, is to make the customer pay part of the fee and give an indemnity for expenses, and to give the contractor no further claim.

b) It might be possible to extrapolate from para. 644, 645 BGB and develop a theory of 'spheres' which one could apply quite generally to contracts of services (references omitted). We need not decide this now. All we are doing here is to apply para. 645 par. 1 sent. 1 BGB to a particular set of facts, as we have done before in a case where the interests of the parties so required (see BGHZ 4O, 7t).

That case was like the present in one respect: there it was an act of the customer that put the work at risk and actually caused its final destruction. Here it was an act of the customer, namely his decision not to have his family vaccinated, which made it impossible to carry out the work, here the trip. Neither here nor in BGHZ 40,71 was there any question of fault on the part of the customer.

c) para. 645 par. 1 sent. 1 BGB concerning defects in the material provided by the customer is based on the following thought. If it is for the customer to provide the material for the work in question, then he is responsible, to the extent specified, for seeing that the material is fit for the work to be done on it, quite apart from any question of fault. When it is for the customer to provide the material, any risk which the condition of that material presents for the proper execution of the work lies closer to him than to the contractor. The idea of 'material' is to be widely construed, as including anything involved in or conducive to the production of the work (references omitted). The interests of the parties are the same if the work to be done by the contractor requires the help of a person, such as the contractor himself. Here, too, it seems right to make the customer responsible for seeing that the person whose involvement is needed before the service can be rendered is in a fit state. Here, too, the customer is closer than the contractor is to the risk that some attribute of the person may endanger the rendering of the service. The following example may illustrate the point. Suppose that a horse which is to be transported to a race falls ill beforehand and is unfit to be carried: unless special terms have been agreed (such as KVO terms), para. 645 par. 1 sent. 1 BGB applies directly, and the carrier obtains only part of the fee, for example, for providing the means of transport, as well as compensation for his outgoings. It cannot be any different if it is a person rather than a horse that is to be carried: the taxi- driver whose calls proves futile can claim no more than a fee for the outward trip.

d) The interests of the parties in these cases are so similar that para. 645 par. 1 sent. 1 BGB must be applied by an analogy, especially because the idea behind the rule in the Code is an equitable one, effecting a reconciliation of the conflicting interests which is acceptable to both parties. Whereas under para. 323 BGB it is the contractor, and under para. 324 BGB the customer, that bears the entire risk of the fee, para. 645 par. 1 sent. 1 BGB by contrast leaves the customer with the disadvantage involved in the loss, deterioration or impossibility of the service due to some defect in the material, but it refrains from adding the further burden of his having to pay for the loss the contractor suffers through not being able to carry out the work (which is the practical effect of para. 324 BGB). When such a 'misfortune' strikes the customer, the contractor must rest content with compensation for the services he has already performed, plus an indemnity for his expenses.

These considerations are equally in point when the service has become incapable of performance because a person is no longer able, for reasons for which he is not responsible, to co-operate as required. This is quite clear in cases like the present. When the defendant booked the journey for himself and his family, there were no entry requirements for Spain. The subsequent ordinance by the Spanish authorities was an event which lay outside the sphere of direct influence of both parties, and struck them both. As a result, the defendant's four-year old daughter, and thus the entire family, became unfit for the journey which the plaintiff had booked. However one delimits the area of risk of the respective parties to a travel contract, this was a 'misfortune' for the defendant in the sense that the plaintiff must bear some of the consequences in accordance with the equitable principle underlying para. 645 par. 1 sent. 1 BGB. If it had already been known that proof of vaccination was required for entry to Spain, the defendant would never have contracted with the plaintiff at all, and then the plaintiff would have received nothing whatever. As it is, the plaintiff obtains at any rate an equitable sum for the services it had already rendered and compensation for any expenses it had incurred. This being the case where neither party could have foreseen the obstacle to the carrying out of the journey booked by the defendant, the result does justice to the interests of both parties, and answers the requirements of equity as expressed by the legislator in para. 645 par. 1 sent. 1 BGB for similar cases III. In all probability the plaintiff has a claim for some sum against the defendant, so we must uphold the judgment of the Court of Appeal that the claim is well-founded. The Court of Appeal must now determine the amount to which the plaintiff is entitled, proceeding on the following basis.

All that is in question is a partial fee in the form of remuneration for the plaintiff's exertions until the time it learnt that the trip could not be carried out. In addition, the plaintiff is entitled to claim in respect of expenses not included in such a partial fee, for example expenses incurred by entering into contractual liabilities in respect of this contract, just as an agent might incur expense in carrying out his mandate (paras 670, 257 BGB). Thus the defendant would have to reimburse the plaintiff for any sum the plaintiff really owes T. GmbH for services towards the performance of the contract which the plaintiff had concluded with the defendant.

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