The silence of the home saver in response to contract amendment offers: consent by inaction possible?
The Higher Regional Court of Frankfurt am Main addressed the fundamental question in two judgments (Case Nos. 17 U 190/23 and 17 U 188/23) under which conditions the silence of a home saver in response to an offer for a contract amendment can be deemed as implied consent. The rulings make it clear that inaction can have far-reaching legal consequences, especially in the context of contractual adjustments by building societies.
Initial situation: contract amendment in home savings contracts
Home savings contracts are traditional instruments for private asset accumulation and property financing. Contract amendments—such as with respect to interest rates, fees, or other conditions—are generally made by mutual agreement. However, in light of current case law, the question arises as to whether and to what extent a home saver’s silence regarding a contract amendment offer may be interpreted as consent.
Reasons for adjustments
Building societies are increasingly challenged to respond to market changes, such as the ongoing low interest rate period, regulatory requirements, or statutory changes. This sometimes necessitates adjustments to existing contracts, the implementation of which, however, requires the consent of the respective home saver.
The decision of the Higher Regional Court (OLG) Frankfurt am Main
In the referenced proceedings, the Higher Regional Court of Frankfurt am Main found that the silence of a home saver on a contract amendment offer—under certain circumstances—can be regarded as acceptance of the offer within the meaning of Section 151 of the German Civil Code (BGB). However, the court emphasized the necessity of a comprehensive assessment of the specific individual case.
Interpretative value of silence
The court clarified that, as a rule, silence does not have the effect of a legal declaration. Exceptions apply, however, when a so-called ‘customary practice’ exists, or particular circumstances make it appropriate to attribute legal significance to silence. This is particularly the case when a corresponding practice existed between the parties over a longer period, or when the offer expressly indicates that silence will be deemed consent.
Requirements for binding effect
The judges emphasized that several conditions must be cumulatively met for silence to be deemed as acceptance:
- The contract amendment offer must be clearly and transparently formulated.
- The home saver must be able to accept or reject the amendment offer without further understanding.
- An explicit deadline stating that silence will be regarded as acceptance is required.
- Specific elements that may indicate implied acceptance must be examined and confirmed in each individual case.
Legal classification and impact on practice
Significance for building societies and home savers
The ruling underscores that both building societies and home savers must carefully weigh their rights and obligations in the context of contractual adjustments. In light of the decision, a lack of response to an amendment offer may, in exceptional cases, result in an effective amendment of the existing home savings contract—provided the above conditions are fulfilled.
Role of customary practice and good faith
The court refers to general principles such as customary practice (Section 242 BGB) and the requirement of good faith. These standards determine in which constellations silence becomes legally relevant. A balancing of the interests of both parties must always be conducted, taking into account the specific circumstances of the contractual relationship.
Duty of transparency and disclosure obligations
A central element is the duty of building societies to ensure transparency when adjusting contracts and to sufficiently inform home savers about the consequences of their silence. Only when the contracting party is aware that their silence will be taken as consent can a legally binding agreement arise.
Conclusion and considerations for contract drafting
The judgments of the OLG Frankfurt do not create an automatic or blanket binding of the home saver through inaction. Rather, they require a careful assessment of appropriateness on a case-by-case basis, particularly in formal agreements between institutions and private individuals. Both building societies and customers should examine their respective rights and obligations relating to contract amendments in a differentiated manner and ensure clear communication.
For those who are uncertain during contract amendments or execution, it becomes clear that uncertainties in contractual relationships can be sustainably reduced through binding and clear communication.
If uncertainties or further core questions arise in connection with a contract amendment, the Rechtsanwalt at MTR Legal are happy to be available as contacts to work together with clients to develop tailored solutions for concrete contractual challenges.
