The III Civil Senate of the Federal Court of Justice, which is responsible among other things for service contract law, has ruled that Section 656 para. 1 BGB, according to which a marriage brokerage contract does not give rise to a claim to remuneration on the part of the broker, is not applicable mutatis mutandis to an online dating agency contract.
Facts of the case:
The defendant operates an online dating agency. The plaintiff purchased a so-called premium membership with a term of 12 months at a price of €265.68 and was duly informed about her right of withdrawal. It requested the defendant to start the execution of the services immediately. The plaintiff then received an automated “personality assessment” based on logarithms as part of the scope of services, as well as partner suggestions, and was able to make full use of the platform. One day later, the plaintiff declared the revocation. The defendant confirmed this and at the same time asserted a claim for compensation for services rendered up to the declaration of revocation in the amount of €199.26.
The plaintiff seeks, among other things, a declaration that it is not obligated to pay the defendant compensation for lost value. In particular, it asserts that by analogous application of Sec. 656 para. 1 sentence 1 of the German Civil Code (BGB), the contract could not have given rise to a claim for remuneration on the part of the defendant.
Course of proceedings to date:
The local court found that the plaintiff was not obliged to pay the defendant € 197.80. On appeal by the defendant, the Regional Court reduced this declaratory award to €49.62. In all other respects, the defendant’s appeal and the plaintiff’s cross-appeal were unsuccessful.
Decision of the Federal Supreme Court:
The Federal Supreme Court has restored the decision of the local court.
However, the defendant is entitled to compensation on the merits. By concluding the contract with the plaintiff, the defendant acquired a claim to remuneration, so that it also has a claim to compensation for the value of its services pursuant to § 351 para. 8 sentence 1 BGB could be justified without it being relevant that the plaintiff had not yet paid the remuneration. § 656 para. 1 BGB does not preclude this, as the standard is not applicable to this contract.
§ 656 para. 1 BGB stipulates that the promise of a wage for proving the opportunity to enter into a marriage or for arranging the conclusion of a marriage does not create a liability, but that what has been paid on the basis of the promise cannot be reclaimed because a liability did not exist. The Federal Supreme Court has assumed a corresponding application of the provision first to the marriage initiation contract and finally to the partnership initiation contract.
He justified this by stating that after the marriage or partnership had come into being, the fee claim arising from such contracts would affect the client’s privacy in the same way as in the case of a claim for the so-called Ehemäklerlohn. Legal disputes are to be expected above all if the efforts of the intermediary have been unsuccessful, so that the objection is often to be expected that the intermediary has not properly fulfilled his contractual obligations by not influencing the partners in question intensively enough or by naming persons who are not interested in a partnership at all or who are not suitable as partners.
However, these reasons do not apply to the contract for an “online dating agency” that is the subject of the proceedings. There, the defendant’s obligation to perform consists primarily in granting its customers unrestricted access to the platform it operates, where they can establish contact with potential partners on their own initiative. It is true that the defendant also provides its customers with partner suggestions.
However, these are based solely on an electronic comparison of the customers’ own information, which has not been verified in detail. An individual, personal evaluation does not take place. Nor does the defendant guarantee the accuracy of this information and thus the quality of the proposals. There are therefore no indications that a legal dispute about the defendant’s claim to remuneration would encroach on the intimate sphere of its customers in a way that would be comparable to the situation with a conventional partnership brokerage contract. The same applies to the so-called personality assessment, which is also created automatically.
The defendant’s claim for compensation for the value of the services provided by it under Section 357 para. 8 sentence 1 BGB, however, is only €1.46. The valuation is to be calculated pro rata temporis for the reasons already set out in the Senate’s judgment of May 6, 2021 – III ZR 169/20. According to these specifications, the defendant’s claim for value replacement amounts to the stated amount (€265.68 : 365 x 2 = €1.46).
