Background of the judgment by the Higher Regional Court (OLG) Frankfurt am Main
The Higher Regional Court (OLG) Frankfurt am Main, in its ruling of May 29, 2024 (Case No.: 17 U 188/23), examined in detail the significance of a building society customer’s silence during a contract amendment. The focus of the decision was the question of under what circumstances a mere lack of response to an offer to amend an existing building society contract can be construed as consent to the contract modification. The judgment highlights the relevance of general civil law as well as specific regulations in banking contract law.
Fundamental Legal Classification
The significance of silence in contract law
German civil law is based on the principle that silence does not, as a rule, constitute a declaration of intent and is therefore generally not considered acceptance of an offer on its own (§ 241 BGB, § 151 BGB). However, there are numerous exceptions, such as those arising from contractual framework conditions, statutory provisions, or the nature of the transaction.
In the financial services sector, especially in long-term contractual relationships such as building society contracts, the silence of one party may, depending on the contractual and factual circumstances, exceptionally be interpreted as consent in individual cases.
Special considerations for contract adjustments
Contract changes in building society contracts are not uncommon in practice. These often pertain to conditions such as interest rates, savings contributions, or the introduction and adjustment of service fees. The legislator aims to safeguard contractual freedom while also ensuring consumer protection – that is, protecting the interests of building society customers.
A procedural peculiarity when changing General Terms and Conditions (GTC) is that, according to the case law of the German Federal Court of Justice (BGH), consent may also be given by conclusive conduct, i.e., implied conduct rather than express acceptance. Nevertheless, mere silence is generally not sufficient—except in cases of so-called amendment mechanisms with qualified presumption of consent.
Decision in the specific case
Facts of the case
In the case at decision, a building society notified its customers of changes to the contract terms—in particular, a new service fee—and requested their consent. The information was clearly formulated in accordance with statutory transparency requirements, and the customer was clearly informed about the planned change and their options for response. The communication also provided for the possibility to object to the contract amendment.
Because the customer did not respond within the specified time frame, the building society interpreted the lack of response as consent and billed the service fee. However, the affected customer did not accept this and pursued legal clarification.
Legal assessment by the OLG Frankfurt am Main
The OLG Frankfurt confirmed that, under certain circumstances, silence in response to an offer to amend a contract can indeed be viewed as tacit consent. According to the court, it is necessary that
- the customer was expressly and transparently informed about the planned amendment and the consequences of their silence,
- a reasonable period for response was provided, and
- the possibility of a clear and explicit objection was given.
The court also emphasized the protective mechanisms provided by the Act on the Adaptation of the Law of Obligations and under consumer protection law. The specific duties of information and clarification aim to ensure informed and voluntary consent.
This ruling builds upon previous case law concerning the presumption of consent and amendments to GTCs in the financial sector. The decision reinforces the requirements for transparency, fairness, and the opportunity to object in order to protect customers’ interests.
Practical relevance and implications
Building society products and customer communication
The ruling is particularly relevant for institutions that intend to modify existing building society contracts in the future. Here, the manner of communication and the design of information letters play a central role. Clear wording, unambiguous deadlines, and the provision of an uncomplicated means of objection are essential in order for a customer’s tacit consent through silence to be assumed. Otherwise, there is a risk that such a change may be deemed invalid in the event of a dispute.
Implications for comparable contractual relationships
Beyond the area of building society contracts, the judgment can also serve as a standard for similar contractual situations—in banks, insurance companies, or other financial services providers. It underscores that statutory consumer protection and fairness in contract performance are not mere formalities, but form the core of effective contract amendments.
Also not to be underestimated are the consequences for enforcing claims in the event of a dispute: both consumers and banks should take this case law into account and review solutions for written confirmation and means of withdrawal. This can often prevent later disputes in advance.
Note on ongoing proceedings and case law
It should be noted that the judgment of the OLG Frankfurt am Main refines and develops the previously established case law on silence and consent in contract modifications. Nevertheless, this is a decision from the second instance court, and further revisions or changes by higher courts remain reserved. The presumption of innocence and the outcome of any pending proceedings should continue to be observed.
Source: OLG Frankfurt am Main, judgment of May 29, 2024 (Case No.: 17 U 188/23), see <a href="https://urteile.news/OLG-Frankfurt-am-Main17-U-18823Schweigen-des-Bausparers-zur-Vertragsaenderung-kann-Zustimmung-bedeuten~N35281″>https://urteile.news/OLG-Frankfurt-am-Main17-U-18823Schweigen-des-Bausparers-zur-Vertragsaenderung-kann-Zustimmung-bedeuten~N35281.
Conclusion
With this decision, the OLG Frankfurt am Main has highlighted key questions regarding the requirement of consent for contract amendments in the banking and savings contract sector, particularly as concerns the interpretation of a building society customer’s silence. Both institutions and customers alike need to ensure transparent and fair processes in order to safeguard the validity of changes even in cases of dispute.
For complex questions regarding contract modifications and their permissibility, individual legal assessments may be advisable. The lawyers at MTR Legal are available to assess the legal situation following appropriate consultation.
