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Closed business (symbol image): Lockdown, a normal business risk?
Photo: Jens Büttner / dpa
The lockdows came, the shop rental stayed: This situation posed enormous challenges for numerous entrepreneurs in the past corona waves.
Although the income fell from one day to the next, their landlords continued to collect the full rent for the retail space that they could no longer use.
The Federal Court of Justice is negotiating today whether this practice was legal.
The highest civil judges have a sample case from Saxony.
It's about a branch of the textile discounter Kik in the Chemnitz area, which was affected by the store closings in Saxony from March 19 to April 19, 2020.
The landlord wants the full rent of around 7850 euros for the time.
The Dresden Higher Regional Court had decided that Kik only had to pay just under half.
It is not about a "normal" risk, "but about extensive state intervention in social and economic life due to a pandemic."
The risk of such a systemic crisis cannot be assigned to one contracting party alone.
Deferral instead of rent waiver as a way out?
Both sides have appealed against the decision of the Higher Regional Court.
It remains to be seen whether there will be a judgment by the BGH immediately after the hearing.
The judges often set an extra appointment for this.
Since the turn of the year 2020/21 it has been made clear by law that commercial tenants can request an adjustment of their lease if they have to close due to Corona measures or are only allowed to open their business with severe restrictions.
The basis is Section 313 of the Civil Code, which regulates the so-called disruption of the business basis.
This means that tenants and landlords would never have concluded the contract like this - if they had known what the future holds.
However, this does not mean that business owners are automatically entitled to have the landlord waive part of the rent for them.
Every single case has to be examined.
It is also just as possible for the landlord to only grant a deferment, i.e. defer the rent due, but not waive the money.
The German Trade Association therefore assumes that a BGH ruling on the dispute in the Chemnitz area will have a significant impact on practice.
File number: XII ZR 8/21
apr / dpa
