ARTICLES and NOTES - Notarius International

226 C. Hertel, Preventive Consumer Protection Notarius International 3-4/2002
sion of a contract. Without the formal requirement,
the parties might conclude the contract even if it is invalid;
so third parties (or the parties of the contract
themselves) might be mistaken to think there were a
valid contract.
4.3.2. Notarial Form and Right to Withdraw cannot
be combined
Formal requirements can replace the right to withdrawal
as an alternate method of consumer protection.
The imbalance between the consumer and the entrepreneur
might be corrected by information duties 35 and
by giving the consumer a right to withdrawal (a cooling
off period). However, the same goal is achieved by the
impartial legal counseling given during the notarial act:
- The notary has to warn the weaker party if the proposed
contract poses particular dangers for the weaker
party. That is even better than an information given
by the entrepreneur.
- The notarial act in itself and the notarial counselling
warns the weaker party not to conclude a contract
without first considering the consequences. This is
equivalent to a cooling off period afterwards. Therefore,
it does not make sense to grant a right to withdrawal
even if the contract is concluded by a notarial
act. The right to withdrawal might even impede an effective
counseling by the notary, because the consumer
might not listen carefully, because he thinks, that he
can withdraw anyway if does not like the contract –
and thus he might miss some important information or
miss the chance to change and improve the contract
before it has been concluded.
Therefore, notarial acts should be exempted from
the right to withdrawal. This has already been regulated
in some directives or national legislation:
- E.g. the new directive on the distance marketing of
consumer financial services, article 6 section 3 c),
grants members states the choice to exclude the right
to withdrawal for “declarations by consumers using
the services of an official”.
- In German law, which gives the consumer a right to
withdraw from a consumer credit (as it is planned also
in the proposed reform of the EC-directive), the
right to withdrawal does not apply for credit contracts
that are in a notarial act (art. 491 sec. 1, 495 BGB).
Similarly, the right of withdrawal for doorstep contracts
is excluded if the contract has been concluded
in a notarial act (because the notarial act interrupts the
influence of the doorstep situation) (art. 312 BGB).
My argument is, that this should be a general principle
in European law to be included into the common
frame of reference as well as into the optional instrument.
4.3.3. Drawbacks of the existing Consumer Protection
Finally, in my view the notarial act and the notarial
counselling can be more flexibly adapted to the individual
party’s need for protection and thus provide an even
better protection than the right to withdrawal.
The concept of “consumer” in the existing directives
sometimes has been critized as too formal 36 . There are
quite a few cases where the consumer does not need
protection, but where the consumer might be on an equal
footing with the entrepreneur.
Here, my “favourite” case is BGHZ 149, 80 37 : Some
lawyers and business consultants had asked for a credit
for an investment of several million Deutschmark. Since
they were private investors, they qualified as consumers
under the rules for consumer credit – although they were
quite experienced in legal and financial questions. The
credit contract did not contain all the information about
the interest rate required by the rules on consume-credit.
Therefore, the BGH decided that these highly qualified
professionals would have to pay only the lower statutory
interest rate (of 4% instead of the contractual rate agreed
upon of about 8%). For me, this is an example of unneccessary,
because overly formalized consumer protection.
In other cases, it might not only be the consumer who
needs protection, but the protection might be more adequately
fixed for a certain type of contract 38 .
Also the notarial counseling can be more flexibly
adapted to the individual party’s need for protection; the
counselling might lead to a contract tailored to the
special needs of the parties, whereas the right to withdrawal
just gives the choice of Yes or No. The right of
withdrawal works better in standard contracts, whereas a
notarial act seems better fit for a complicated deal which
requires an individually tailored contract.
There is always a certain tension between the right to
withdrawal and the principle of contractual freedom 39 ,
whereas the legal counseling in an notarial act might even
help the parties to fully implement their contractual freedom
and get the contract they actually want.
Thus, I hope I have made my case, that a notarial act is
one possible way of protecting the weaker party. Therefore
it can and should replace other forms of consumer
protection, in particular the consumer’s right to withdrawal.
35 comp. e.g. Fleischer, Informationsassymetrie im Vertragsrecht, 2000;
Fleischer, ZEuP 2001, 772; S. Grundmann, Privatautonomie im Binnenmarkt
– Informationsregeln als Instrument, JZ 2000, 1133.
36 For a critical analysis of the term consumer in existing directives and
its implications, comp. Brambring, Wer schützt den Verbraucher vor
dem Verbraucherschutz, ZNotP 203, 42; Canaris, AcP 200 (2000)
273, 362; Th. Pfeiffer, Der Verbraucherbegriff als zentrales Merkmal
im europäischen Privatrecht, in: H. Schulte-Nölke/Reiner Schulze
(ed.), Europäische Rechtsangleichung und nationale Privatrechte
(note 17), p. 21-43.
37 BGH, 23 october 2001 – XI ZR 63/01, BGHZ 149, 80 = DNotZ 2002,
528 = NJW 2002, 368.
38 O. Remien, Verbraucherrecht oder allgemeines Privatrecht für die Europäische
Union in: H. Schulte-Nölke/Reiner Schulze (ed.), Europäische
Rechtsangleichung und nationale Privatrechte (note 14), p.,
107, 113 s.
39 comp. Canaris, AcP 200 (2000) 273, 361; B. Dauner-Lieb, Verbraucherschutz
durch Ausbildung eines Sonderprivatrechts für Verbraucher,
1983, p. 119; Gernhuber, WM 1998, 1797.