Status: 06/17/2021 6:46 a.m.
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Anyone who wants to draw up an individual contract goes to a lawyer. That’s how it was before. In the meantime, however, it can also be done online without legal assistance. The BGH is now examining whether this is permissible. What are the sticking points?
By Kerstin Anabah and Pia Brandsch-Böhm
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What is the specific case about?
The publisher Wolters Kluwer offers the legal document generator “Smartlaw”. With the help of the software, private individuals and companies can create and then purchase individual legal documents, such as rental agreements. To do this, customers have to answer 30 to 40 questions. The whole thing was “modeled on the conversation with the lawyer”, according to the original advertisement.
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Wolters Kluwer is not admitted to the bar and is not licensed to provide legal services. The Hamburg Bar Association has therefore sued the publisher (Az. I ZR 113/20). She sees the Legal Tech offer as an anti-competitive violation of the Legal Services Act. According to this, legal services may only be provided by lawyers.
How have the courts decided so far?
The Cologne Regional Court gave the Bar Association in law. It saw in the contract generator a violation of the Legal Services Act.
Wolters Kluwer appealed against this to the Cologne Higher Regional Court – with success. According to the Cologne Higher Regional Court, this is not a legal service, as there is a lack of human (service) performance. The documents would be created by software. There is no customer contact because the customer operates the software himself. In addition, no legal examination of the individual case is necessary, since the program runs according to a fixed routine and facts are only inserted into a given grid.
Have there already been judgments in similar cases?
As early as 2019, the Federal Court of Justice ruled on a legal aid program in the ruling on “kleineermiete.de”. At that time the question was whether a rental price calculator represents a collection or a legal service. With this online calculator, customers could see by entering their data whether they were paying too much rent and immediately defend themselves against it. For this purpose, the program directly commissioned the company behind it to enforce the rights. The BGH has declared this rental price calculator to be permissible.
How the first civil senate decides in the case of the contract generator is open. The industry for such offers is booming. The ruling is therefore likely to be another important step towards greater legal certainty.
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