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LG Wuppertal, judgment of 30.10.2019 - 3 O 384/18
Tenor
The action is dismissed.
The plaintiff shall bear the costs of the proceedings.
The judgment is provisionally enforceable against security in the amount of 110%.
Facts
The parties are disputing the repayment of amounts which the plaintiff claims to have used in the context of online gambling via the defendant's payment service.
The defendant is licensed and registered as a credit institution in Luxembourg pursuant to Art. 2 of the Luxembourg Law of April 5, 1993 on the Regulation of the Financial Sector. It is listed as a bank throughout the EU.
The plaintiff opened a PayPal account for consumers with the defendant several years ago, which was initially managed under the e-mail address ####@##.## and later under the e-mail address ####@##.##.
There are cooperation agreements ("Payment Processing Agreements") between the Defendant and operators of online gambling sites, including xx.com, which allow the gambling operator to send and receive payments via the Defendant.
Via his Paypal account, the plaintiff at least made payments to the operator of the website bwin.com, the amount and cause of which are disputed in detail between the parties.
At an unspecified point in time, after the plaintiff claims to have learned of the alleged illegality of online gambling, he exercised his right to revoke direct debits that were still within the revocation period of eight weeks. As a result, the plaintiff reversed debit entries to the value of EUR 13,900.00.
In a letter from a lawyer dated February 8, 2018, the plaintiff requested the defendant, setting a deadline of February 27, 2018, to reimburse an amount of EUR 36,450.13.
The plaintiff claims that in the period from January 8, 2015 to October 17, 2017, he made payments in the amount of €43,133.00 via the defendant's payment service for online gambling at xx.com, yy.com, #.com and y.co. It had acted around play stakes for forbidden on-line gambling. The plaintiff had erroneously assumed legality. However, the defendant was aware, or it was recognizable to the defendant, that this was prohibited gambling.
The plaintiff is of the opinion that it follows from Section 4 (4) GlüStV that organizing and brokering public gambling on the Internet is prohibited. It follows from Section 4 (1) GlüStV that involvement in payments in connection with unauthorized gambling is prohibited. The defendant has a duty to check the transactions to be carried out in cashless payment transactions to determine whether they are connected with illegal online gambling.
The plaintiff is also of the opinion that he is entitled to damages in the amount claimed under the payment services agreement and from unjust enrichment pursuant to Section 812 (1) sentence 2 of the German Civil Code. According to the plaintiff, his damages result from the payments instructed for the prohibited gambling minus payouts received in the amount of EUR 11,595.
After the plaintiff initially requested before the oral hearing that the defendant be ordered to pay EUR 43,133.00 plus interest, he now requests that the court
to order the defendant to pay him EUR 33,854.00 plus interest from EUR 33,854.00 in the amount of 5 percentage points above the applicable prime rate since February 28, 2018.
The defendant requests that the action be dismissed.
The defendant disputes breach of duty, causality and damage. It is of the opinion that online gambling is not prohibited per se in Germany. Moreover, it is entitled to assume that its contractual partners are law-abiding. Even if the gambling providers in Germany did not have permission, this could not be attributed to the defendant for lack of obviousness. The damage was not conclusive because the plaintiff had not shown which wins and losses he had made with the gaming stakes.
There was no nullity of the payment service agreement or the authorizations. Participation in payments could only be prohibited after prior notification of unauthorized gambling offers by the gambling supervisory authority. In addition, the objection under Section 817 sentence 2 of the German Civil Code (BGB) precludes a claim for unjust enrichment.
Reference is made to the exchanged pleadings and annexes for further information on the facts of the case and the dispute.
Reasons for decision
The admissible action is not well-founded.
The plaintiff has against the deplored one no requirement on repayment of its play stakes - this neither from ? 280 exp. 1, 241 exp. 2 BGB (in addition below 1.) or from ? 812 exp. 1 p. 1 Alt. 1 BGB (see 2. below) or on any other legal grounds.
1
The legal relationship between PayPal and its users is to be qualified as a payment services framework contract according to § 675 f para. 2 sentence 1 BGB and in the sense of chapter 3 of the European Payment Services Directive PSD II, which comes into existence through a successful registration (Harman, BKR 2018, 457).
The defendant did not breach the (protective) duties incumbent upon it under the payment services framework agreement pursuant to Section 241 (2) BGB. Such a breach of duty follows neither from the conclusion of the cooperation agreements with the relevant Online Casinos (see a) below) nor from the execution of the specific payment orders of the plaintiff (see b) below). Nor is it the duty of the defendant to prevent the plaintiff from participating in possibly prohibited gambling (see c) below).
a)
The mere fact that the defendant entered into a contractual relationship with the operators of online gambling sites does not violate any contractual (protective) duty in relation to the plaintiff. Even if the provision of Section 134 of the German Civil Code were to apply here, it would relate solely to the relationship between the plaintiff and the gambling provider. The fact that the plaintiff may not be obligated to pay his stakes vis-à-vis the gambling providers due to the lack of a permit to organize casino games pursuant to Section 134 BGB does not affect the instruction relationship between the defendant and the plaintiff (cf. LG Berlin, judgment of 16.04.2018, Case No. 37 O 367/18).
Thus, it is furthermore irrelevant whether the providers at issue here constitute unauthorized gambling. This has no effect on the validity of the payment service framework agreement between the plaintiff and the defendant. By agreeing to the payment transaction, the contracting company acquires an abstract claim for payment against the payment services company under Section 780 of the German Civil Code (BGB). Objections arising from the underlying contractual relationship between the user and the contracting company cannot, in principle, be raised by the user against the payment service Provider in the context of the payment service contract (cf. for credit card companies: BGH, XI ZR 420/01). This would only be different if it is obvious and provable that the contracting company would not be entitled to a claim against the user arising from the value date relationship. However, the fact that the plaintiff initiated the payments himself already speaks against this.
b)
The fact that the defendant executed the plaintiff's payment orders also does not constitute a breach of duty. Thus, the defendant did not participate in unauthorized gambling to the detriment of the plaintiff within the meaning of Section 4 (1) sentence 2 GlüStV.
The plaintiff himself initiated and authorized the payments by entering his Paypal customer data on the websites of the respective gambling providers, so that the defendant was obliged to execute them on the basis of the payment service framework agreement existing between the parties.
It is true that the extension in Section 4 (1) sentence 2 GlüStV clarifies that involvement in payments in connection with unauthorized gambling is also prohibited. However, according to the explanatory notes to the Interstate Treaty on Gaming, the provision in Section 4 (1) sentence 2 is to be viewed in connection with the supervisory powers of the Gaming Supervision Authority in Section 9 and expands the possibilities of claiming against third parties as responsible interferers, insofar as they have previously been made aware of the unauthorized involvement in prohibited gambling (explanatory notes to the GlüStV, as of December 7, 2011, p. 17). The provision in Section 9 (1) sentence 3 no. 4 serves - according to the motives - to clarify and concretize Section 4 (1) sentence 2, according to which those involved in payment transactions, in particular credit and financial services institutions including e-money institutions (no. 4), may be called upon as responsible interferers by way of a dynamic legal reference, provided that they have previously been notified by the gambling supervisory authority of their involvement in unauthorized gambling offers. This requires that the organizer or intermediary of the unauthorized gambling offer has previously been held liable in vain - in particular due to a foreign connection (explanatory notes on the GlüStV, as of December 7, 2011, p. 32; OLG Munich order dated February 6, 2019 - 19 U 793/18). The fact that the defendant had received such a notice from the gambling supervisory authority prior to settlement of the claims incurred is neither submitted nor evident.
c)
It is ultimately not the duty of the defendant to protect the plaintiff from possibly illegal payment transactions and to prevent him from doing so.
A duty to protect pursuant to Section 241 (2) of the German Civil Code does not simply exist, but is always based on the content and nature of the Debt relationship. For the concretization, the general criteria - possibilities of influence on the legal interests of the other party, reasonableness of the protective duties as well as the degree of desirable trust in the corresponding relationship - are to be used (NK-BGB/Peter Krebs, 3rd ed. 2016, BGB § 241 marginal no. 52). As far as it concerns the clarification of the other contracting party, also the experience and knowledge distance between the parties are to be considered. A corresponding duty to examine or warn is not given. The plaintiff himself bears the responsibility for his criminal conduct.
This already follows from line 1.1 of the defendant's terms of use, where the defendant has made it clear that it does not check the services that the plaintiff pays for with the help of the service offered by the defendant and does not assume any liability for them. The terms of use have become an integral part of the contract, since the plaintiff was made aware of them prior to the conclusion of the contract and had the opportunity to access them on the Internet.
In principle, each party to a contract - including the defendant - may rely on the other party's lawful conduct. This applies all the more since, according to clause 9 lit. b) of the defendant's terms of use, violations of applicable law in connection with the use of the defendant's service are prohibited. Therefore, there was neither a contractual obligation nor a corresponding reason for the defendant to check the plaintiff's payment instructions in detail for their legality.
An obligation of the defendant to check whether the payments ordered by the plaintiff were made in connection with unlawful gambling also does not arise from the law. In principle, the payment service provider is obliged to execute payment orders under the framework contract. It is true that the payment service provider may refuse a payment order under certain conditions. However, the existence of this right of refusal does not lead to a right of refusal of the payment service provider (BeckOK BGB/Schmalenbach, 51st ed. 1.8.2019, BGB § 675o Rn. 11). According to case law, something different only applies if it is obvious that the contracting company is using the payment service provider in abuse of rights. However, this is only the case if the contracting company is clearly exploiting its formal legal position in bad faith, i.e., if it is obvious that it is not entitled to a claim against the user arising from the value date relationship. This is not the case under the circumstances given here. The fact that the payment was made on the basis of an instruction from the plaintiff already speaks against this.
Furthermore, the defendant was not obliged to check or monitor the payment process of the plaintiff. Accordingly, any kind of duty to protect customers only exists if the bank, without closer examination in the course of normal processing of a payment transaction, has to raise suspicion on the basis of objective evidence based on massive suspicious facts (BGH, XI ZR 56/07). In the opinion of the Board, this is not the case here. The defendant was not obliged to compare the gambling services used with the so-called "WHITE-LIST" of the German federal states in order to identify any illegality. Such a Verification effort goes beyond the normal processing of payment transactions and was precisely not incumbent on the defendant. The defendant could assume that the plaintiff's conduct was law-abiding and did not have to reckon with a possible violation of Section 285 of the Criminal Code (LG München I, judgment of February 28, 2018 - 27 O 11716/17).
Moreover, a review for the defendant also seems hardly possible, since in any case it should not be recognizable whether each individual game perceived by the plaintiff actually constitutes unauthorized gambling.
d)
In addition, it is not evident to what extent a possible breach of the duty to protect by the defendant could have caused the asserted damage in an adequately causal manner. The alleged damage was not caused by an act of the defendant, but by a decision of the plaintiff's own will. Purely logically, any damage suffered by the plaintiff could only lie in the fact that the plaintiff lost the amount he had wagered after participating in the game. According to the uncontradicted submission of the defendant, the charging of the gaming account with the gaming providers alone does not yet lead to the loss of the corresponding amount of money. The plaintiff has used the defendant as a payment service provider to finance his participation in the online gambling. First of all, this represents a decision made by the plaintiff on his own responsibility. That the plaintiff would not have participated in these games if the defendant had not concluded cooperation agreements with the respective operators of the online casinos is neither shown nor would such a conclusion be plausible. Rather, in view of the frequency of the gaming stakes, it seems rather unrealistic to assume that the plaintiff would not then have used another means of payment. In any case, nothing to the contrary has been plausibly presented.
2
Contrary to the opinion of the plaintiff also no requirement from enrichment right exists in accordance with ? 812 exp. 1 p. 1 BGB. The plaintiff did not explain and prove that the deplored one attained something without legal argument.
The relationship between the defendant and the plaintiff is governed by the payment services framework agreement. Contrary to the plaintiff's view, this contract is not void pursuant to Section 134 of the German Civil Code (BGB), as it does not in itself violate any statutory prohibition (OLG München order dated February 6, 2019 - 19 U 793/18).
A legal transaction is void if it violates a statutory prohibition. Such a prohibition law is not present. It is true that under Section 4 (1) sentence 2 GlüStV, involvement in payments in connection with unauthorized gambling is also prohibited. The defendant also made these payments. However, it is not the defendant's responsibility to verify the legality of any payments (cf. for credit card companies: BGH XI ZR 96/11). Pursuant to Section 9 (1) sentence 3 no. 4 GlüStV, this is rather the task of the gambling supervisory authority of the respective federal state. The gambling supervisory authority must notify the cooperating credit company of any unauthorized gambling offers. Only then may the gambling supervisory authority take measures against the credit company and prohibit its involvement in unauthorized gambling. The plaintiff has not presented any such notification of the gambling supervisory authority to the defendant. Since the requirements for participation in payments in unauthorized gambling are not met, the payment executions of the defendant do not violate the State Treaty on Gambling and are therefore not void under Section 134 of the German Civil Code (LG Berlin, judgment of April 16, 2019 - 37 O 367/18).
Based on the above considerations, the authorizations are also not void pursuant to § 134 BGB in conjunction with § 4 I S. 2, IV BGB in conjunction with § 4 I S. 2, IV BGB in conjunction with § 4 I S. 2, IV BGB. § Section 4 I p. 2, IV GlüStV. In particular, the nullity does not result from Section 4 (1) sentence 2 GlüStV(see above). This provision is not intended to interfere with the payment transactions existing between the player, in this case the defendant, and the plaintiff. According to the meaning and purpose of the GlüStV, the prohibition is intended to ensure that the competent gambling supervisory authority can also take action against third parties within the scope of its powers. As mentioned above, however, the gambling supervisory authority may only take action against payment service providers, such as the defendant, once they have been prohibited from engaging in unauthorized gambling. Moreover, the protective purpose according to § 1 of the GlüStV is to prevent the emergence of Gambling addiction and betting addiction and to steer the natural gambling instinct of the population into orderly and supervised channels and to ensure that, among other things, the consequences and accompanying criminality associated with gambling are averted. This objective would be virtually torpedoed if it were to be assumed that the authorization of payment transactions was null and void. In this case, the bank, which is usually acting in good faith, would be left with the expenses and the gambler would be given carte blanche, so to speak, because the gambled stake would immediately be refunded by the bank and the gambler would not incur any financial losses or risks. Under these circumstances, the player could carry out gambling without any financial risk. On the contrary, a participant in gambling in bad faith, who would ultimately be liable to prosecution under Section 285 of the Criminal Code, could use payment institutions acting in good faith for illegal activities (LG Berlin loc. cit.).
The Chamber thus assumes that the authorizations of the plaintiff, which relate to the gambling transactions at issue, are effective and not void. The defendant had to execute the payment transaction in accordance with the plaintiff's instructions pursuant to §§ 675 f (2) sentence 1, 675 o (2) BGB. The defendant could not refuse the execution of the payments also in accordance with § 675 o Abs. 2 BGB. § Section 675 o (2) BGB gives the plaintiff a right to refuse to execute an authorized payment order. It results from it no obligation to reject the payment order, still in addition, if as here, the conditions of § 9 exp. 1 p. 3 No. 4 GlüStV do not exist, the deplored one evenly by the gambling authority was not informed.
Regardless of this, a possible claim for restitution by the plaintiff would be precluded by the provision of Section 817 of the German Civil Code, according to which restitution is excluded in the event of a violation of the law by both parties. Assuming that the payment services framework agreement was void due to a breach of Section 4 of the GlüStV, the plaintiff would be equally affected by this breach. Assuming the plaintiff's submission, his participation in public gambling would be punishable under Section 285 of the Criminal Code.
3
Further claims, in particular such from tort law in accordance with § 823 exp. 1 or exp. 2 in connection with the regulations of the gambling interstate contract fail from the above considerations likewise. The defendant cannot be accused of any culpable violation of legal interests to the detriment of the plaintiff.
The plaintiff's statements in the written pleadings of 14.10.2019 and 17.10.2019 gave no reason to reopen the oral proceedings, nor did the defendant's statements in the written pleading of 24.10.2019.
The decision on costs follows from Section 91 (1) ZPO; the decision on provisional enforceability from Section 709 ZPO.
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LG Wuppertal, judgment of 30.10.2019 - 3 O 384/18
Tenor
The action is dismissed.
The plaintiff shall bear the costs of the proceedings.
The judgment is provisionally enforceable against security in the amount of 110%.
Facts
The parties are disputing the repayment of amounts which the plaintiff claims to have used in the context of online gambling via the defendant's payment service.
The defendant is licensed and registered as a credit institution in Luxembourg pursuant to Art. 2 of the Luxembourg Law of April 5, 1993 on the Regulation of the Financial Sector. It is listed as a bank throughout the EU.
The plaintiff opened a PayPal account for consumers with the defendant several years ago, which was initially managed under the e-mail address ####@##.## and later under the e-mail address ####@##.##.
There are cooperation agreements ("Payment Processing Agreements") between the Defendant and operators of online gambling sites, including xx.com, which allow the gambling operator to send and receive payments via the Defendant.
Via his Paypal account, the plaintiff at least made payments to the operator of the website bwin.com, the amount and cause of which are disputed in detail between the parties.
At an unspecified point in time, after the plaintiff claims to have learned of the alleged illegality of online gambling, he exercised his right to revoke direct debits that were still within the revocation period of eight weeks. As a result, the plaintiff reversed debit entries to the value of EUR 13,900.00.
In a letter from a lawyer dated February 8, 2018, the plaintiff requested the defendant, setting a deadline of February 27, 2018, to reimburse an amount of EUR 36,450.13.
The plaintiff claims that in the period from January 8, 2015 to October 17, 2017, he made payments in the amount of €43,133.00 via the defendant's payment service for online gambling at xx.com, yy.com, #.com and y.co. It had acted around play stakes for forbidden on-line gambling. The plaintiff had erroneously assumed legality. However, the defendant was aware, or it was recognizable to the defendant, that this was prohibited gambling.
The plaintiff is of the opinion that it follows from Section 4 (4) GlüStV that organizing and brokering public gambling on the Internet is prohibited. It follows from Section 4 (1) GlüStV that involvement in payments in connection with unauthorized gambling is prohibited. The defendant has a duty to check the transactions to be carried out in cashless payment transactions to determine whether they are connected with illegal online gambling.
The plaintiff is also of the opinion that he is entitled to damages in the amount claimed under the payment services agreement and from unjust enrichment pursuant to Section 812 (1) sentence 2 of the German Civil Code. According to the plaintiff, his damages result from the payments instructed for the prohibited gambling minus payouts received in the amount of EUR 11,595.
After the plaintiff initially requested before the oral hearing that the defendant be ordered to pay EUR 43,133.00 plus interest, he now requests that the court
to order the defendant to pay him EUR 33,854.00 plus interest from EUR 33,854.00 in the amount of 5 percentage points above the applicable prime rate since February 28, 2018.
The defendant requests that the action be dismissed.
The defendant disputes breach of duty, causality and damage. It is of the opinion that online gambling is not prohibited per se in Germany. Moreover, it is entitled to assume that its contractual partners are law-abiding. Even if the gambling providers in Germany did not have permission, this could not be attributed to the defendant for lack of obviousness. The damage was not conclusive because the plaintiff had not shown which wins and losses he had made with the gaming stakes.
There was no nullity of the payment service agreement or the authorizations. Participation in payments could only be prohibited after prior notification of unauthorized gambling offers by the gambling supervisory authority. In addition, the objection under Section 817 sentence 2 of the German Civil Code (BGB) precludes a claim for unjust enrichment.
Reference is made to the exchanged pleadings and annexes for further information on the facts of the case and the dispute.
Reasons for decision
The admissible action is not well-founded.
The plaintiff has against the deplored one no requirement on repayment of its play stakes - this neither from ? 280 exp. 1, 241 exp. 2 BGB (in addition below 1.) or from ? 812 exp. 1 p. 1 Alt. 1 BGB (see 2. below) or on any other legal grounds.
1
The legal relationship between PayPal and its users is to be qualified as a payment services framework contract according to § 675 f para. 2 sentence 1 BGB and in the sense of chapter 3 of the European Payment Services Directive PSD II, which comes into existence through a successful registration (Harman, BKR 2018, 457).
The defendant did not breach the (protective) duties incumbent upon it under the payment services framework agreement pursuant to Section 241 (2) BGB. Such a breach of duty follows neither from the conclusion of the cooperation agreements with the relevant Online Casinos (see a) below) nor from the execution of the specific payment orders of the plaintiff (see b) below). Nor is it the duty of the defendant to prevent the plaintiff from participating in possibly prohibited gambling (see c) below).
a)
The mere fact that the defendant entered into a contractual relationship with the operators of online gambling sites does not violate any contractual (protective) duty in relation to the plaintiff. Even if the provision of Section 134 of the German Civil Code were to apply here, it would relate solely to the relationship between the plaintiff and the gambling provider. The fact that the plaintiff may not be obligated to pay his stakes vis-à-vis the gambling providers due to the lack of a permit to organize casino games pursuant to Section 134 BGB does not affect the instruction relationship between the defendant and the plaintiff (cf. LG Berlin, judgment of 16.04.2018, Case No. 37 O 367/18).
Thus, it is furthermore irrelevant whether the providers at issue here constitute unauthorized gambling. This has no effect on the validity of the payment service framework agreement between the plaintiff and the defendant. By agreeing to the payment transaction, the contracting company acquires an abstract claim for payment against the payment services company under Section 780 of the German Civil Code (BGB). Objections arising from the underlying contractual relationship between the user and the contracting company cannot, in principle, be raised by the user against the payment service Provider in the context of the payment service contract (cf. for credit card companies: BGH, XI ZR 420/01). This would only be different if it is obvious and provable that the contracting company would not be entitled to a claim against the user arising from the value date relationship. However, the fact that the plaintiff initiated the payments himself already speaks against this.
b)
The fact that the defendant executed the plaintiff's payment orders also does not constitute a breach of duty. Thus, the defendant did not participate in unauthorized gambling to the detriment of the plaintiff within the meaning of Section 4 (1) sentence 2 GlüStV.
The plaintiff himself initiated and authorized the payments by entering his Paypal customer data on the websites of the respective gambling providers, so that the defendant was obliged to execute them on the basis of the payment service framework agreement existing between the parties.
It is true that the extension in Section 4 (1) sentence 2 GlüStV clarifies that involvement in payments in connection with unauthorized gambling is also prohibited. However, according to the explanatory notes to the Interstate Treaty on Gaming, the provision in Section 4 (1) sentence 2 is to be viewed in connection with the supervisory powers of the Gaming Supervision Authority in Section 9 and expands the possibilities of claiming against third parties as responsible interferers, insofar as they have previously been made aware of the unauthorized involvement in prohibited gambling (explanatory notes to the GlüStV, as of December 7, 2011, p. 17). The provision in Section 9 (1) sentence 3 no. 4 serves - according to the motives - to clarify and concretize Section 4 (1) sentence 2, according to which those involved in payment transactions, in particular credit and financial services institutions including e-money institutions (no. 4), may be called upon as responsible interferers by way of a dynamic legal reference, provided that they have previously been notified by the gambling supervisory authority of their involvement in unauthorized gambling offers. This requires that the organizer or intermediary of the unauthorized gambling offer has previously been held liable in vain - in particular due to a foreign connection (explanatory notes on the GlüStV, as of December 7, 2011, p. 32; OLG Munich order dated February 6, 2019 - 19 U 793/18). The fact that the defendant had received such a notice from the gambling supervisory authority prior to settlement of the claims incurred is neither submitted nor evident.
c)
It is ultimately not the duty of the defendant to protect the plaintiff from possibly illegal payment transactions and to prevent him from doing so.
A duty to protect pursuant to Section 241 (2) of the German Civil Code does not simply exist, but is always based on the content and nature of the Debt relationship. For the concretization, the general criteria - possibilities of influence on the legal interests of the other party, reasonableness of the protective duties as well as the degree of desirable trust in the corresponding relationship - are to be used (NK-BGB/Peter Krebs, 3rd ed. 2016, BGB § 241 marginal no. 52). As far as it concerns the clarification of the other contracting party, also the experience and knowledge distance between the parties are to be considered. A corresponding duty to examine or warn is not given. The plaintiff himself bears the responsibility for his criminal conduct.
This already follows from line 1.1 of the defendant's terms of use, where the defendant has made it clear that it does not check the services that the plaintiff pays for with the help of the service offered by the defendant and does not assume any liability for them. The terms of use have become an integral part of the contract, since the plaintiff was made aware of them prior to the conclusion of the contract and had the opportunity to access them on the Internet.
In principle, each party to a contract - including the defendant - may rely on the other party's lawful conduct. This applies all the more since, according to clause 9 lit. b) of the defendant's terms of use, violations of applicable law in connection with the use of the defendant's service are prohibited. Therefore, there was neither a contractual obligation nor a corresponding reason for the defendant to check the plaintiff's payment instructions in detail for their legality.
An obligation of the defendant to check whether the payments ordered by the plaintiff were made in connection with unlawful gambling also does not arise from the law. In principle, the payment service provider is obliged to execute payment orders under the framework contract. It is true that the payment service provider may refuse a payment order under certain conditions. However, the existence of this right of refusal does not lead to a right of refusal of the payment service provider (BeckOK BGB/Schmalenbach, 51st ed. 1.8.2019, BGB § 675o Rn. 11). According to case law, something different only applies if it is obvious that the contracting company is using the payment service provider in abuse of rights. However, this is only the case if the contracting company is clearly exploiting its formal legal position in bad faith, i.e., if it is obvious that it is not entitled to a claim against the user arising from the value date relationship. This is not the case under the circumstances given here. The fact that the payment was made on the basis of an instruction from the plaintiff already speaks against this.
Furthermore, the defendant was not obliged to check or monitor the payment process of the plaintiff. Accordingly, any kind of duty to protect customers only exists if the bank, without closer examination in the course of normal processing of a payment transaction, has to raise suspicion on the basis of objective evidence based on massive suspicious facts (BGH, XI ZR 56/07). In the opinion of the Board, this is not the case here. The defendant was not obliged to compare the gambling services used with the so-called "WHITE-LIST" of the German federal states in order to identify any illegality. Such a Verification effort goes beyond the normal processing of payment transactions and was precisely not incumbent on the defendant. The defendant could assume that the plaintiff's conduct was law-abiding and did not have to reckon with a possible violation of Section 285 of the Criminal Code (LG München I, judgment of February 28, 2018 - 27 O 11716/17).
Moreover, a review for the defendant also seems hardly possible, since in any case it should not be recognizable whether each individual game perceived by the plaintiff actually constitutes unauthorized gambling.
d)
In addition, it is not evident to what extent a possible breach of the duty to protect by the defendant could have caused the asserted damage in an adequately causal manner. The alleged damage was not caused by an act of the defendant, but by a decision of the plaintiff's own will. Purely logically, any damage suffered by the plaintiff could only lie in the fact that the plaintiff lost the amount he had wagered after participating in the game. According to the uncontradicted submission of the defendant, the charging of the gaming account with the gaming providers alone does not yet lead to the loss of the corresponding amount of money. The plaintiff has used the defendant as a payment service provider to finance his participation in the online gambling. First of all, this represents a decision made by the plaintiff on his own responsibility. That the plaintiff would not have participated in these games if the defendant had not concluded cooperation agreements with the respective operators of the online casinos is neither shown nor would such a conclusion be plausible. Rather, in view of the frequency of the gaming stakes, it seems rather unrealistic to assume that the plaintiff would not then have used another means of payment. In any case, nothing to the contrary has been plausibly presented.
2
Contrary to the opinion of the plaintiff also no requirement from enrichment right exists in accordance with ? 812 exp. 1 p. 1 BGB. The plaintiff did not explain and prove that the deplored one attained something without legal argument.
The relationship between the defendant and the plaintiff is governed by the payment services framework agreement. Contrary to the plaintiff's view, this contract is not void pursuant to Section 134 of the German Civil Code (BGB), as it does not in itself violate any statutory prohibition (OLG München order dated February 6, 2019 - 19 U 793/18).
A legal transaction is void if it violates a statutory prohibition. Such a prohibition law is not present. It is true that under Section 4 (1) sentence 2 GlüStV, involvement in payments in connection with unauthorized gambling is also prohibited. The defendant also made these payments. However, it is not the defendant's responsibility to verify the legality of any payments (cf. for credit card companies: BGH XI ZR 96/11). Pursuant to Section 9 (1) sentence 3 no. 4 GlüStV, this is rather the task of the gambling supervisory authority of the respective federal state. The gambling supervisory authority must notify the cooperating credit company of any unauthorized gambling offers. Only then may the gambling supervisory authority take measures against the credit company and prohibit its involvement in unauthorized gambling. The plaintiff has not presented any such notification of the gambling supervisory authority to the defendant. Since the requirements for participation in payments in unauthorized gambling are not met, the payment executions of the defendant do not violate the State Treaty on Gambling and are therefore not void under Section 134 of the German Civil Code (LG Berlin, judgment of April 16, 2019 - 37 O 367/18).
Based on the above considerations, the authorizations are also not void pursuant to § 134 BGB in conjunction with § 4 I S. 2, IV BGB in conjunction with § 4 I S. 2, IV BGB in conjunction with § 4 I S. 2, IV BGB. § Section 4 I p. 2, IV GlüStV. In particular, the nullity does not result from Section 4 (1) sentence 2 GlüStV(see above). This provision is not intended to interfere with the payment transactions existing between the player, in this case the defendant, and the plaintiff. According to the meaning and purpose of the GlüStV, the prohibition is intended to ensure that the competent gambling supervisory authority can also take action against third parties within the scope of its powers. As mentioned above, however, the gambling supervisory authority may only take action against payment service providers, such as the defendant, once they have been prohibited from engaging in unauthorized gambling. Moreover, the protective purpose according to § 1 of the GlüStV is to prevent the emergence of Gambling addiction and betting addiction and to steer the natural gambling instinct of the population into orderly and supervised channels and to ensure that, among other things, the consequences and accompanying criminality associated with gambling are averted. This objective would be virtually torpedoed if it were to be assumed that the authorization of payment transactions was null and void. In this case, the bank, which is usually acting in good faith, would be left with the expenses and the gambler would be given carte blanche, so to speak, because the gambled stake would immediately be refunded by the bank and the gambler would not incur any financial losses or risks. Under these circumstances, the player could carry out gambling without any financial risk. On the contrary, a participant in gambling in bad faith, who would ultimately be liable to prosecution under Section 285 of the Criminal Code, could use payment institutions acting in good faith for illegal activities (LG Berlin loc. cit.).
The Chamber thus assumes that the authorizations of the plaintiff, which relate to the gambling transactions at issue, are effective and not void. The defendant had to execute the payment transaction in accordance with the plaintiff's instructions pursuant to §§ 675 f (2) sentence 1, 675 o (2) BGB. The defendant could not refuse the execution of the payments also in accordance with § 675 o Abs. 2 BGB. § Section 675 o (2) BGB gives the plaintiff a right to refuse to execute an authorized payment order. It results from it no obligation to reject the payment order, still in addition, if as here, the conditions of § 9 exp. 1 p. 3 No. 4 GlüStV do not exist, the deplored one evenly by the gambling authority was not informed.
Regardless of this, a possible claim for restitution by the plaintiff would be precluded by the provision of Section 817 of the German Civil Code, according to which restitution is excluded in the event of a violation of the law by both parties. Assuming that the payment services framework agreement was void due to a breach of Section 4 of the GlüStV, the plaintiff would be equally affected by this breach. Assuming the plaintiff's submission, his participation in public gambling would be punishable under Section 285 of the Criminal Code.
3
Further claims, in particular such from tort law in accordance with § 823 exp. 1 or exp. 2 in connection with the regulations of the gambling interstate contract fail from the above considerations likewise. The defendant cannot be accused of any culpable violation of legal interests to the detriment of the plaintiff.
The plaintiff's statements in the written pleadings of 14.10.2019 and 17.10.2019 gave no reason to reopen the oral proceedings, nor did the defendant's statements in the written pleading of 24.10.2019.
The decision on costs follows from Section 91 (1) ZPO; the decision on provisional enforceability from Section 709 ZPO.
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[Chargeback] - Wuppertal Regional Court rules in favor of PayPal
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[Chargeback] - Wuppertal Regional Court rules in favor of PayPal
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