The final letter only corresponds to the presumed intention of the debtor and is also only as necessary within the meaning of § 670 To see BGB, if the creditor is allowed to the debtor prior to sending the costly final letter sufficient time, to submit the final statement by itself can (Wartefrist, of. T. as “Reflection period” or “Reflection period” referred), and when the set with the final letter response time sufficiently, d.h. is adequately long (Response Deadline, z.T. as “Response time” referred). Are sufficiently 14 Days.
OLG Hamburg judgment of 6. February 2014 The. 3 You 119/13
The appeal of the applicant and the appeal of the defendant against the judgment of the Regional Court Hamburg, Civil Chamber 27, from 18. July 2013, Yeah: 327 The 173/13, be rejected.
Of the costs of the appeal by the applicant fall 38%, the defendant 62 % zur Last.
The judgment is provisionally enforceable. The parties may, by the enforcement of security in the amount of 110% turn of each on the basis of the judgment to be enforced amount, unless the other party prior to the enforcement of security in the amount 110% each of the guaranteed amount to be enforced.
Against this judgment, the revision is allowed.
The applicant accepts the defendant for compensation for the cost of a competitive final letter in the amount of € 2.841,00 plus interest claim.
The applicant under the 30. August 2012 obtained an injunction from the Landgericht Hamburg, with which the defendant seven different advertising messages to the drug F. have been banned in two different advertising media (Anlage K 1). This injunction was the defendant on 6. September 2012 delivered (Anlage K 2).
On the contrary the defendant the Hamburg Regional Court confirmed the preliminary injunction with the judgment of 29. November 2012. The sentence was the defendant – according to the undisputed party lecture – at the 11. January 2013 delivered. Before the expiry of the appeal period on 11. February 2013, namely a letter from the applicant representatives from 25. January 2013, there Beklagten per Telefax über true am 28. January 2013, Racke had the defendant to submit a competitive final declaration calling. It stated in the letter (Anlage K 3):
” … since the judgment 29. November 2012 confirmed injunction only the interim measures used and contains no final settlement, we ask you to 7. February 2013 (detail with us) to confirm, that your client accepts the injunction underlying claims and the rights to appeal may be lodged, as well as §§ 926, 927 ZPO omitted.”
By letter from counsel for the 29. January 2013 allowed the defendant to the applicant a final declaration with regard to five of the seven have asserted claims for injunctive relief proposed (Anlage B 1). With regard to the remaining two injunctive they appealed to the district court judgment.
By letter from counsel for the 31. January 2013 the applicant took the final declaration delivered to the defendant and explained in terms of the remaining two injunctive, to the extent to see the contradiction of the defendant (Anlage B 4). In the same letter the defendant's representatives was costing the 31. January 2013 for the final letter of 25. January 2013 a total of € 2.841,00 sent (Anlage K 4/€ 2.841,00 = 1.3 times Annual fee for a subject value of € 285.000,00 EUR in the amount of € 2.821,00 together with expenses allowance of € 20,00 in accordance with Clause. 7002 VV RVG).
By letter from counsel for the 6th and 14. February 2013 let the defendant relied on by the applicant payment requirement for the final letter of 25. January 2013 reject (Capabilities K 5, B 2 und B 3).
At the 2. More 2013 The applicant brought this action, with what they demand from their payment for the final letter 25. January 2013 in the amount of € 2.841,00 plus interest from pendens continues to pursue.
The applicant has represented the first instance view, that already by letter dated 31. January 2013 (Anlage B 4) alleged payment claim was well founded grounds and amount.
They, the applicant, I am with the dispatch of the final letter 28. January 2013 (Anlage K 3) waited long enough. In particular, they do not have the expiry of the period for filing the appeal against the judgment of the District Court of 29. November 2012 have to wait. Otherwise, will the creditor's interest in the efficient attainment of legal certainty – also in view of § 945 ZPO – injured.
It adds, that in the case of a judgment, which merely confirmed the decision given to decision paths injunction, for the omission debtor a reasonable opportunity already have passed, to deal with the question, if he wanted to make a final statement.
Finally, the assertion was a 1.3-fold business fee sent by the plaintiff representatives completion letter (Anlage K 3) customary and reasonable taking into account the difficulty of the matter.
The applicant has requested,
order the defendant, t the Klägerin € 2.841,00 plus interest in the amount of 5 %-To pay points above the base rate since pendens.
The defendant applied,
dismiss the action.
The defendant argued, that relied on by the applicant to claim there is neither the reason nor the amount of.
The costs incurred for a final letter costs are only to report, when the letter was necessary. Because it lacked, if the creditor did not give the debtor a reasonable opportunity, give of themselves from the final declaration. So it was up here, because the final letter of 25. January 2012 (Anlage K 3) the applicant was the defendant already on 28. January 2012, and before the expiry of the appeal period on 11. February 2013 send.
The appeal period of one month should give the parties the opportunity, to calmly consider, whether he wants to use the appeal or whether he wanted to end the debate by a final closing statement. This period should not be shortened by the premature sending a final letter.
Since the introduction of the statute of limitations inhibition facts in accordance with § 204 Abs. 1 No.. 9 BGB there is no more reason, for the sending of a letter of completion for a waiting period of only 14 To consider days of notification of a preliminary injunction for sufficiently. For the suspension of the limitation border in accordance with § 204 Abs. 2 BGB only 6 Months after the final decision or other termination of the initiated disposal method.
The amount claimed was for the final letter in addition, only a 0.3-fold business fee, but at best a reasonable 0.8 times Annual Fee, because writing is exhausted in the usual standard formulations. The final declaration of the defendant did not give rise to further legal examination on the part of the plaintiffs representative.
In its judgment in the process of writing 18. July 2013 the district court of the action in the amount of € 1.756,00 plus interest in the amount of 5% above the base rate since 3. More 2013 complied. The further action was dismissed. That decision was based, that the refund claim on its merits in accordance with §§ 670, 677, 683 BGB was justified. However, it consists of the amounts set out in relation to a 0.8-fold business fee plus. Lump sum for expenses.
Against this judgment both parties address their vocations, they each time- have and form according inserted and justified under revision and consolidation of their respective first instance lecture.
The defendant in support of its appeal from further, that the district court with the introduction of § 204 Abs. 1 No.. 9 BGB changing interests not adequately taken into account and on the jurisdiction of the Federal Court (BGH GRUR-RR 2008, 368 ff. – Fees for final letter; BGH GRUR 2006, 349 ff. – Attorney liability) have enforced across.
The district court had also made a vital contribution to the decision of the OLG Hamm from 4. More 2005, The. 4 You 12/12, BeckRS 2010,15344, based, However, without taking into account, that even after this decision, the time for consideration of the debtor, whether he would appeal the verdict available, should not be shortened. However, the response deadline set by the plaintiffs representatives was already on 7. February 2013 (Anlage K 3), and thus 4 Expired days before the expiry of the appeal period.
With regard to the amount of the awarded costs of the final letter, the defendant, relying on the decision of the BGH “Costs relating to final letter” (Wheat 2010, 1038 ff.) again, that this is due to the exclusively used standard formulas only content easier to type a letter in accordance with No.. 2302 RVG VV acted. Therefore, at best is a 0,3 To put business fee.
The defendant claims,
the judgment of the District Court of Hamburg 18. July 2013, The. 327 The 173/13, amend, so far it has been issued to the detriment of the defendant, and dismiss the application in full,
Reduction of the amount awarded in the first instance on a 0,3 Annual fee.
The applicant claims,
dismissed the appeal of the defendant and appellant.
The applicant defends the district court judgment, as far as a conviction of the defendant is done.
In view of the partially Klagabweisung by the district court, the applicant states again, that the alleged 1,3 Annual fee was reasonable, because it had been a thing of average difficulty. Therefore, the applicant'm also the further alleged difference in the amount of € 1.085,00 plus interest to.
The applicant claims,
the defendant from using a modification of the judgment of the Landgericht Hamburg 18. July 2013 (327 The 173/13) to pay further € 1.085,00 plus interest in the amount of 5% points to pay above the base rate since lis pendens to the applicant.
The defendant claims,
dismiss the appeal of the applicant.
The defendant defends the judgment of the Landgericht, as far as a partial Klagabweisung is done.
By order of 17. December 2013 the Senate with the consent of the parties pursuant to § 128 Abs. 2 ZPO arranged the written procedure and as time, corresponding to the end of the hearing and may be submitted to the pleadings, the 16. January 2014 certainly.
Further terms of the property- and the dispute, is in the judgment under appeal and the parties to the 16. January 2014 taken submitted to the Act pleadings and the annexes reference.
The appeals of the parties are permitted, but unfounded.
The appeal of the defendant is unfounded, because the payment amount awarded in the amount of € 1.756,00 is justified, including the appropriate Rechtshängigkeitszinsen.
The awarded payment claim arises from the principles of agency without authority (BGH, Wheat 2010, 1038, 1039 Rn. 26 – Costs relating to final letter; BGH, Wheat 2012, 730, 733 Rn. 45 – Bauheizgerät).
The cost of the final letter, d.h. the written solicitation of a closure declaration referred for a preliminary injunction, are basically after §§ 677, 683, 670 BGB-refundable. Such a claim requires, that the creditor against the debtor at the time of solicitation of a final declaration state a claim for injunctive relief and the solicitation of the final declaration corresponded to the interest and the real or presumed will of the debtor.
Requirement is in accordance with § 670 ZPO, that it is those in the cost of the final letter, which the creditor deemed to be necessary.
That the applicant from the final declaration 29. January 2013 (Anlage B 1) states recognized injunctive, is no longer in dispute between the parties in the present litigation.
In addition, the dispatch of the final letter was 28. January 2013 required and also corresponded to the presumed intention of the defendant.
The final letter has a dual purpose. Firstly, it is generally necessary, do not want the creditors in the main process an immediate acknowledgment of the debtor and of costs in accordance with § 93 Risk ZPO. It corresponds to the presumed intention of the debtor other, because it offers him the opportunity, cost-effective to terminate the litigation rather than through a potentially lengthy and cost-prone main proceedings by filing a final declaration.
However, the final letter and the associated costs are not required, if the debtor is clearly to recognize, that he does not accept the injunction as a final rule. This can – widespread view – according as by filing an objection or appeal and by an application for an order of legal action §§ 936, 926 Happen ZPO (vgl. Köhler / Bornkamm, UWG, 32. Edition, 2014, § 12 Rn. 3.70; Teplitzky, Antitrust claims and procedures, 10. Edition, 2011, Get. 43 Rn. 28). In any case, the creditor can collect his main claim in this case, without running the risk, the costs in accordance with § 93 To bear ZPO (OLG Hamburg, Wheat 1989, 458 LS; OLG Hamm, Wheat 1991, 336; OLG Cologne, GRUR-RR 2009, 183 f.; KG, NJOZ 2010, 2131, 2134; Harte / Henning-Brüning, UWG, 3. Edition, 2013, Prep to § 12 Rn. 258).
Waits for the omission creditors but – herein – the decision on the opposition in the disposal process from, he must eliminate the cost disadvantages of § 93 ZPO send the debtor filing of the main action, a final letter (OLG Hamburg, WRP 1986, 289, 290 – Termination letter OLG Dusseldorf, Wheat 1991, 479, 480; Ahrens / Ahrens, The competitive process, 7. Edition, 2013, Get. 58 Rn. 42; Fezer-Büscher, Competition Law (UWG), 2005, § 12 Rn. 148 jurisPK-UWG/Hess, 2. Edition, 2009, § 12 Rn. 137). The interim hearing and the written reasons for the judgment can in fact have led to a change of mind of the debtor (so OLG Cologne, WRP 1987, 188, 190 f.; OLG Frankfurt, GRUR-RR 2006, 111, 112; Ahrens / Ahrens, a.a.O., Get. 58 Rn. 42), so that the file the opposition no longer allows secure closing, that the debtor is unwilling, recognize the injunction as a final rule.
The final letter corresponds, however, only the presumed intention of the debtor and is also only as necessary within the meaning of § 670 To see BGB, if the creditor is allowed to the debtor prior to sending the costly final letter sufficient time, to submit the final statement by itself can (Wartefrist, of. T. as “Reflection period” or “Reflection period” referred), and when the set with the final letter response time sufficiently, d.h. is adequately long (Response Deadline, z.T. as “Response time” referred).
The necessity of the final letter is denied, unless the creditor has not disclosed to the debtor within a reasonable time opportunity, to make the injunction granted by itself definitive by submitting a final declaration. The time period, which is considered a reasonable waiting period, is assessed inconsistently in law and literature. The majority is of a minimum period of 12 Assumed days and a maximum period of one month, beginning from receipt of the injunction by the debtor(see references in Köhler / Bornkamm, a.a.O., §12 Rn. 3.73).
The discerning Senate generally holds a waiting period of 2 Weeks for sufficient (OLG Hamburg, OLGR 2003, 257, 258; OLG Hamburg, BeckRS 1999, 05783, Rn. 27; as OLG Frankfurt, GRUR-RR 2003, 274, 278 f.; OLG Frankfurt, GRUR-RR 2003, 294 f.; OLG Hamm, GRUR-RR 2010, 267, 268 Teplitzky, a.a.O., Get. 43 Rn. 31 Ahrens / Ahrens, a.a.O., Get. 58 Rn. 45jurisPK-UWG/Hess, a.a.O. § 12 Rn. 140). The circumstances of the individual case, however, may justify a longer or shorter waiting period.
Should – as the applicant claims – have already begun with the opposition proceedings, including final promulgation of the running of the period, the applicant had waited long enough. The oral opposition proceedings and the short announcement at the end of the session have been on 29. November 2012 occurred, so on until receipt of the final letter 28. January 2013 about two months had passed.
Even if the period should have started with the delivery of the contradiction judgment in complete form (so OLG Cologne, WRP 1987, 188, 191 OLG Frankfurt, GRUR-RR 2006, 111, 112; OLG Hamm, GRUR-RR 2010, 267, 268; Ahrens / Ahrens, a.a.O., Get. 58 Rn. 45), the applicant had waited long enough, because the plaintiff here has a waiting period of 17 Days of service of the country court judgment 29. November 2012 to elapse. That time limit has also in consideration of the other circumstances of the case as appropriate. Although the subject of the dispute the parties were complex advertising of medicines legal issues, of which at the time of the final letter yet 7 the originally 11 were alleged omission applications in dispute. The relevant legal and factual issues, however, were already under the opposition proceedings on 29. November 2012 orally and subsequently in the judgment of 29. November 2012, which the defendant on 11. February 2012 has been served, been discussed and dealt with in writing. It is not clear, that the defendant longer on the basis of this known state of play as 17 Time of day would have needed, to make by itself a decision on the submission of a final declaration.
A general extension of the waiting period on the expiry of the appeal period is not eligible (so auch OLG Hamm, BeckRS 2010, 15344; OLG Hamm, GRUR-RR 2010, 267, 268; Ahrens / Ahrens, a.a.O., Get. 58 Rn. 45; a.A. KG, WRP 1989, 659, 661). Which precludes, that the creditors usually has an understandable interest, quickly to gain clarity about, whether to enforce their claims nor the institution of substantive proceedings will be required. This interest arises not only in terms of the risk of liability for damages under § 945 ZPO, but also from the, that the suspension of the limitation under § 204 Abs. 1 No.. 9 ZPO only in relation to the omission of any claims asserted already in the injunction proceedings, however, can not occur with respect to the corresponding Annex claims. In that regard, threatens limitation in accordance with § 11 UWG, so that the creditor in order to ensure uniform enforcement of injunctions- and Annex claims (vgl. to OLG Köln IIC-RR 2009, 183 f.) is located in view of the already secured with the injunction injunctive relief in an early clarification. The fact, that the applicant has here first waited for the outcome of the opposition proceedings, does not lead to a different assessment.
Although the lack of synchronization of waiting period and appeal period leads to, that another chargeable event is set to be borne by the debtor even during the running of the appeal period. If the debtor wants to avoid the cost of the final letter, is it not available for the full utilization of the appeal period. However, this consequence of his competition infringement must accept the debtor. But he need not fear, to be covered without warning with a costly main claim,. If this advantage is associated with it, optionally having to reimburse the cost of a final letter, jeopardizing the interests of the debtor are not unduly disregard set (OLG Hamm, BeckRS 2010, 15344).
The adequacy of the present 17-day waiting period is – other than the Beklagte Meint – not contrary to the case law of the BGH. The Supreme Court has indeed, whereupon the defendant rightly points, in the decision “Fees for final letter” a period of 3 Regarded weeks after notification of the injunction to be sufficient (BGH GRUR-RR 2008, 368, 370 Rn. 12). A decision on, whether a shorter waiting time would have been considered reasonable, was thus not taken. Thus, not desired by the defendant conclusion from the aforementioned Supreme Court decision be taken, that always, and therefore in this case, a waiting period of at least 3 Weeks must be observed.
The further BGH-Decision “Attorney liability” (Wheat 2006, 349 ff.) not to suggest, that a waiting period of 17 Days would unreasonably short. It deals as obiter dictum with the issue of synchronization of the set in the final writing period for response (Dazu s.u.) and the appeal period, but not here to be judged with the waiting period. Therefore, it is not listed in the comments, that a costly shipment of the final letter of the Supreme Court's view, could only take place upon expiry of the appeal period.
Thus, the being kept by the applicant waiting period proves of 17 Days here as appropriate.
The set of the applicant in the final letter responded to by the 7. February 2013 shall not preclude the obligation to reimburse the defendant.
With the completion of writing the debtor shall be requested, recognize the injunction as a final settlement within a reasonable period. Also in this respect consists in law and literature no uniform view to the length of the reasonable reaction time.
As a rule, even to the extent a response time of 2 Regarded weeks as appropriate (so KG, WRP 1989, 659, 661; OLG Stuttgart, MD 2001, 352, 353; OLG Frankfurt, GRUR-RR 2003, 294 Teplitzky, a.a.O. Get. 43 Rn. 22 f.; Gottingen / Nord Male-Kaiser, UWG, 1. Edition, 2010, § 12 Rn. 321: i.d.R. 2 Weeks, in difficult cases at the latest 4 Weeks ; Köhler / Bornkamm, UWG, 32. Edition, 2014,§ 12 Rn. 3.71: at least 4 Or weeks of the issuing of the injunction. at least 2 Weeks from receipt of the final letter Ahrens / Ahrens, a.a.O., Get. 58 Rn. 44: i.d.R. 1 Months since delivery, exceptionally, a shorter period, but at least 2 Weeks; Fezer-Büscher, a.a.O., § 12 Rn. 152: 2 to 4 Weeks, the deadline should not be earlier than one month after notification of the injunction; jurisPK-UWG/Hess, a.a.O. § 12 Rn. 138: 1 Month).
Depending on the circumstances of the individual case but may also have a longer or shorter period proportionate. The debtor must have sufficient time, to verify the matter, to to make the necessary inquiries and if necessary seek legal. Needed no special search, it is expected of him, to comment on short notice, even if the claim is secured by the provisional injunction (Harte / Henning-Brüning, a.a.O., Prep to § 12 Rn. 257).
The fact, that the set of the applicant's response deadline on 7. February 2013, and thus already 10 Days after receipt of the final letter and 4 Take our who am 11. February 2013 running time has expired for the notice of appeal, does not lead to the inadequacy of the period prescribed.
Firstly, the complexity of the present case is not able to prove, that the defendant a period of more than 10 Days would have required, a decision to make regarding the submission of the final declaration. As already stated above, was after service of the country court judgment, a period of 17 Sufficiently days since delivery of the district court judgment, to this decision on his own, d.h. independent of any one final letter from the applicant. The content of the 28. January 2013 sent conclusion the applicant's letter was also not suitable, Increasing this time- to cause or amount of work on the part of the defendant. Thus proves that with 10 Days sized response time here as appropriate.
Which is also the Supreme Court decision “Attorney liability” not preclude. Although the Supreme Court has stated there, that the view of part of the literature, that then, if the preliminary injunction was issued by a judgment, may be required to do so by the plaintiff before the expiration of the appeal period no explanation, if he would recognize the injunction final, “there are good reasons” could (BGH, Wheat 2006, 349, 351 Rn. 19 – Attorney liability). A decision of the Supreme Court has, however, not taken in this regard, as the relevant passages of the Supreme Court are made as obiter dictum.
Even on the basis of the aforesaid legal opinion, which could be required in terms of the acknowledgment of the injunction by the debtor prior to the expiration of the appeal period no explanation (as a result also OLG Frankfurt, GRUR-RR 2003, 274, 278; OLG Hamm, BeckRS 2010, 15344), would the defendant on the merits to pay the costs of the final letter obliged.
The response deadline set by the applicant would indeed be too short, because they would have expired before the ongoing appeal period. Also would not be too short a period for response in the presumed interests of the defendant, so that might seem questionable, whether the final letter within the meaning of § 670 BGB was required. This can, however, ignored the fact, regularly that the reasonable period takes the place of too short a period (OLG Stuttgart, MD 2001, 352, 353; Gottingen / Nord Male-Kaiser, a.a.O., § 12 Rn. 321; Ahrens / Ahrens, a.a.O., Get. 58 Rn. 44; Fezer-Büscher, a.a.O. § 12 Rn. 152), so dass – even on the assumption of non-shared by the sentencing Senate legal opinion of the OLG Hamm and the OLG Frankfurt – the response time could not expire before the appeal period or. has expired.
The cost of the final letter are previously, which gave rise to its transmission after a reasonable waiting period. The question of the appropriateness of the prescribed period for response therefore does not affect the obligation to pay the costs of the final letter of.
Legal implications could develop an unreasonably short period for response just in case, that the applicant meanwhile raised his main claim and the defendant had given a sufficient degree of understanding between the expiry of the unreasonably short set of the applicant's response time and the end of the reasonable period longer response. Then would – in the context of the main proceedings – been to consider, the applicant in view of § 93 Burdening ZPO with the cost of his main claim, whether pursuant to § 269 Abs. 3 Sentence 3 Oder ZPO § 91a ZPO.
The crucial question here to the existence of a reimbursement claim for the final letter on its merits, however, is not affected.
The height according to the applicant, pursuant to § 670 However, demand BGB only reimbursement of the costs, who was allowed to keep it in the circumstances for the final letter for required.
These are – as the district court correctly pointed out – Costs totaling € 1.756,00. The amount is based on an undisputed item value of € 285.000,00 from a 0.8-fold business fee pursuant to Section. 2300 VV RVG in the amount of € 1.736,00 as well as a lump sum for expenses pursuant to No.. 7002 VV RVG in the amount of € 20,00.
The defendant is in contrast to the support of its application, the auxiliary view, that it is the final letter is a writing simple way by No.. 2302 VV RVG acted, so that only a 0.3-fold fee (€ 651,00) could be taken into consideration in. The Senate can not be accepted here.
The jurisprudence of the Supreme Court and the lower courts, the view is predominantly represented, that it is a final letter is generally not easy to write a kind referred to in No.. 2302 RVG VV handele, so that the resulting business this fee by no. 2300 RVG VV was to measure.
With respect to the number of. 2300 VV RVG opened fees under 0,5 to 2,5 is – other than with respect to the pre-litigation warning, for a 1.3-fold business fee is considered appropriate regular (see references in Köhler / Bornkamm,a.a.O., § 12 Rdn. 1.94) – considered a 0.8-fold fee appropriate for the final letter majority. In support runs, that a 1.3-fold fee had not caused, since it is in comparison to the pre-litigation warning at any rate so far is a simple matter, as clarifying the contentious legal issues, even if the main proceedings was difficult, have already taken place by this court decision (OLG Hamburg, BeckRS 2009, 25057, Rn. 59 cited by juris).
The discerning 3. Civil Division and the 5. Civil Division of the Hanseatic Higher Regional Court usually lay a 0.8-fold fee based business (OLG Hamburg, 3. Civil Division, NJOZ 2009, 3610 = WRP 2009, 1152 Rn. 37; OLG Hamburg, 5. Civil Division, BeckRS 2009, 25057, Rn. 59 cited by juris as OLG Dusseldorf, BeckRS 2008, 05681 Rn. 25 cited by juris). This is offset by Decisions of the OLG Hamm and the Court of Appeal, put a 1.3-fold fee based business (OLG Hamm, BeckRS 2009, Rn. 7 cited by juris; OLG Hamm, BeckRS 2008, Rn. 14 cited by juris KG, BeckRS 2009, Rn. 21 cited by juris; also jurisPK-UWG / Hess, a.a.O., § 12 Rn. 141).
The Supreme Court has held, that the resulting financial statements for a business letter fee generally based on no. 2300 VV RVG must be calculated, the framework of a fee 0,5 to 2,5 provides for. A final letter is exhausted usually not in a mere reference to the injunction has already been taken, but pursuing in particular the aim, bring about a waiver of the defendant on all counterclaims. The difficulty of such a letter is therefore generally be set higher than mere requests for payment, Reminders or registration office inquiries, recognized as being of no. 2302 RVG VV fell under. In addition, after receipt of the final statement in the rule, if an examination is required, whether the declaration made to achieve the security objective content sufficient (BGH, Wheat 2010, 1038, 1040 Rn. 31 – Costs relating to final letter with reference to Ahrens / Ahrens, The competitive process, 6. Edition, Get. 58 Rn. 11).
The Supreme Court has, however, performed in view of the decision of the local underlying concrete completion letter, that there had been at this for a writing simple way. A writing simple way before lying, when compared with the debtor pronounced solicitation of the final declaration did not require re-legal examination of the facts. So it was present, because the debtor had already withdrawn the opposition in view of the discussions in the opposition proceedings. In the subsequent completion letter was accordingly to the hearing in summary proceedings, during which the debtor had already promised the delivery of a final declaration, Bezug genommen be. For a writing simple type have also spoken, that had been carried out in legal terms only, the debtor may confirm, that they recognize the injunction as a final regulation and the rights of the §§ 924, 926 and 927 ZPO renounce, because there had not been only a standard formulation, which is usually contained in a final letter. Next simpler way've talked for a letter, that the declaration made by the Debtor final declaration did not require more comprehensive legal examination in case of dispute, because she had covered mainly with the content of the creditor in the final letter desired thing (BGH, Wheat 2010, 1038, 1040 Rn. 32 – Costs relating to final letter).
The above remarks show, that according to the current Supreme Court jurisprudence for the final writing regularly a 0.8-fold fee business pursuant to No.. 2300 VV RVG is considered reasonable. Only can the existence of a special individual case circumstances other hand, the final letter as writing simple way in terms of number. 2302 Be regarded VV RVG.
The conditions required for this are not available here. Although it is the final letter of 25. January 2012 from standard formulations. The legal arguments are extremely tight. However, it can not be ignored, that – unlike in the case decided by the Supreme Court case – was already done in the opposition proceedings, neither the withdrawal of the opposition to deliver a final declaration in prospect. In addition, the final written statement of the defendant's representative is so far fallen short of the required final declaration, as the defendant's preliminary injunction of 30. August 2012 only in terms of prohibitions to I. No.. 1, No.. 2, No.. 3, No.. 8 and No.. 9, but not for the other prohibitions to I. No.. 10 and No.. 11 accepted as final and binding regulation and the extent of the rights of §§ 926, 927 ZPO has waived. Even the explicitly requested with respect to the appeal waiver is not declared (Anlage B 1). This fact leads to, that in this respect came a new legal analysis in consideration.
The final letter of the plaintiffs representative (Anlage K 3) is therefore not to be regarded as writing simple way. Therefore, the Senate holds the Landgericht estimated for the final letter fee of 0,8 appropriate. Thus, the order the defendant to reimburse the costs of the final letter in the amount of € 1.756,00 gemäß §§677, 683, 670 BGB is done rightly. The interest awarded is based on §§ 288 Abs. 1, 291 BGB.
Thus, the appeal of the defendant must be dismissed.
The appeal of the applicant is unfounded, because you already conferred on the amount of payment in the amount of € 1.756,00 and the corresponding Rechtshängigkeitszinsen addition, no further payment claim is entitled.
The above remarks show, that according to the current Supreme Court jurisprudence for the final writing regularly a 0.8-fold fee business pursuant to No.. 2300 VV RVG is considered reasonable. The applicant has not put forward any circumstances, it – exceptionally – could justify, to bring the present letter a final 1.3-fold business fee approach. To avoid repetition, reference is made to the above statements.
Hence the appeal of the applicant is rejected.
The costs is based on § 97 ZPO. The statement concerning the provisional enforceability is given by §§ 708 No.. 10, 711 ZPO.
The Revision war Gemäß § 543 Code of Civil Procedure allow, because the matter is of fundamental importance and also require the development of law and ensure equal held that a decision of the Court of Appeals.