Stutt­gart Hig­her Regio­nal Court: Bewa­re of threa­tening to stop deliveries

The announce­ment of deli­very stops as an unlawful threat

This was con­firm­ed by the Stutt­gart Hig­her Regio­nal Court (OLG) in its judgment of 7 April 2022 (case no.: 2 U 63/21) , whe­re the court had to deci­de an action for dama­ges brought by an auto­mo­ti­ve sup­pli­er against a glo­bal­ly ope­ra­ting car manufacturer.

The court found in par­ti­cu­lar that decla­ra­ti­ons of intent that are only inten­ded to avo­id unlawful­ly threa­ten­ed deli­very stops are voida­ble and the­r­e­fo­re agree­ments based on them can be null and void pur­su­ant to § 142 (1) of the Ger­man Civil Code (BGB).

The facts

The sup­pli­er “Pre­vent” had been sup­p­ly­ing “Mer­ce­des Benz Group AG” (form­er­ly: Daim­ler AG and her­ein­af­ter “Mer­ce­des”) with car seat covers sin­ce 2010. Sin­ce the supplier’s cos­ts had increased over time and it held that sup­p­ly­ing Mer­ce­des was no lon­ger eco­no­mic­al, the sup­pli­er gave noti­ce of ter­mi­na­ti­on for cau­se of all exis­ting sup­p­ly con­tracts with Mer­ce­des on 13 Decem­ber 2013, effec­ti­ve as of 31 Janu­ary 2014. At the same time, the sup­pli­er offe­red to con­clude new sup­p­ly con­tracts with the manu­fac­tu­rer on adjus­ted terms. Mer­ce­des initi­al­ly rejec­ted this kind of con­tract adjustment.

Sin­ce the par­ties were unable to reach an agree­ment, Pre­vent infor­med Mer­ce­des on 31 Janu­ary 2014 that it would no lon­ger pro­vi­de any deli­veries from the fol­lo­wing day, 1 Febru­ary 2014. It was out of this situa­ti­on of duress that Mer­ce­des agreed to the adjus­ted con­di­ti­ons on 4 Febru­ary 2014. The­se included, among other things, month­ly com­pen­sa­ti­on pay­ments to the sup­pli­er in the amount of appro­xi­m­ate­ly EUR 80,000.

Half a year later, on 1 August 2014, Mer­ce­des voided its decla­ra­ti­on of intent which had led to the adjus­ted agree­ment on the grounds of unlawful thre­at and ter­mi­na­ted all other exis­ting con­tracts with the sup­pli­er for cau­se on the same grounds. Mer­ce­des then also stop­ped accep­ting seat covers from the sup­pli­er from Sep­tem­ber 2014. Pre­vent then clai­med dama­ges in court against Mer­ce­des in the amount of dou­ble mil­li­ons for lost profits.

The judgment

The Stutt­gart Hig­her Regio­nal Court con­firm­ed the opi­ni­on of the lower court (Stutt­gart Regio­nal Court) and essen­ti­al­ly dis­missed Prevent’s action.

The Stutt­gart Hig­her Regio­nal Court found that Mer­ce­des was no lon­ger obli­ged from 1 August 2014 to accept the seat covers. The­r­e­fo­re, Mer­ce­des was not lia­ble for dama­ges to Pre­vent due to the non-acceptance. With the valid decla­ra­ti­on of void­ance of 1 August 2014, Mer­ce­des was released from the agree­ment made on 4 Febru­ary 2014 with imme­dia­te effect.

The court con­side­red the unlawful thre­at by Pre­vent to impo­se a deli­very stop as a legi­ti­ma­te reason for the decla­ra­ti­on of void­ance. This was due to the fact that Pre­vent had neither the right to ter­mi­na­te the con­tract wit­hout noti­ce nor the right to stop deli­veries from the announ­ced date.

Ter­mi­na­ti­on wit­hout noti­ce could not be declared by Pre­vent for lack of cau­se. Pre­vent had invo­ked the “eco­no­mic distress” of one of its sites. Howe­ver, accor­ding to the Stutt­gart Hig­her Regio­nal Court, this is not suf­fi­ci­ent to invo­ke cau­se in the form of a com­pel­ling reason pur­su­ant to § 314 of the Ger­man Civil Code (BGB) or a serious and (no lon­ger) reasonable chan­ge in the basis of the con­tract pur­su­ant to § 313 of the Ger­man Civil Code (BGB). In both cases, it is decisi­ve that “eco­no­mic distress” gene­ral­ly falls within the supplier’s sphe­re of risk and that Pre­vent was not able to pro­ve other­wi­se (e.g. that the con­ti­nua­tion of the con­tract was nevert­hel­ess unre­asonable for Prevent).

Moreo­ver, the Stutt­gart Hig­her Regio­nal Court also ruled out the reinter­pre­ta­ti­on of the extra­or­di­na­ry ter­mi­na­ti­on for cau­se into an ordi­na­ry ter­mi­na­ti­on. This fai­led becau­se a “reasonable noti­ce peri­od” would have had to be obser­ved in the case of ordi­na­ry ter­mi­na­ti­on. In the opi­ni­on of the court, the peri­od of 7 weeks set by Pre­vent was “obvious­ly […] unre­asonable” in view of the many years of (plan­ned) coope­ra­ti­on and the time nee­ded to set up an alter­na­ti­ve supplier.


Like the judgments of the Düs­sel­dorf Hig­her Regio­nal Court and the Cel­le Hig­her Regio­nal Court, the judgment in the Pre­vent case points out once more that com­mu­ni­ca­ti­on towards busi­ness part­ners should be done with cau­ti­on and only after suf­fi­ci­ent exami­na­ti­on of one’s own legal position.

At the same time, the decis­i­on of the Stutt­gart Hig­her Regio­nal Court and its expl­ana­ti­ons on the reinter­pre­ta­ti­on of an extra­or­di­na­ry ter­mi­na­ti­on for cau­se into an ordi­na­ry ter­mi­na­ti­on made it clear that ordi­na­ry ter­mi­na­ti­on of sup­pli­er con­tracts with reasonable noti­ce is gene­ral­ly pos­si­ble on the basis of §§ 623, 724 of the Ger­man Civil Code (BGB).

In any case, care should alre­a­dy be taken when draf­ting the con­tract to reflect and exclude iden­ti­fied (pri­ce) risks in the con­tract as far as pos­si­ble in order to avo­id fin­ding ones­elf in a situa­ti­on like the one descri­bed abo­ve in the first place.


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