Recently, a decision for the post processing of non-performing insurance by cancellation risk communication adopted new reasoning capabilities against Commission recovery decisions BGH, judgment of December 1, 2010 – VIII ZR 310/09 which has German Federal Supreme Court (BGH). The decision refers to that claim of an insurance representative on the Commission only arises if the policyholder has paid the premiums from which the Commission is calculated (section 92 (4) German Commercial Code – HGB). The policyholder does not pay the due premium and this is however due to circumstances for which the insurance company is not responsible, the Commission again (Section 87a paragraph 3 HGB) is not valid for. Provided advances on the Commission are then again to repay. It is widely recognized that the non-payment of the premium or cancellation of insurance contract from an insurance company then cannot be justified is if the troubled treaty sufficiently “reworked”. To the Finishing non-performing insurance contracts after the insurance companies take their own measures against cancellation or limited opportunity to give the insurance representative by a cancellation risk communication to revise the Treaty itself. In the event of a dispute is set out by the insurance company and to prove that the cancellation measures were sufficient according to kind and extent.

Own actions against cancellation risk by the insurance company, so the BGH has now found, the policyholders to fulfil its contractual obligation must be admonished seriously and strongly. The mere sending of a letter is not sufficient for this purpose. An insurance undertaking descendant also only his compulsory cancellation security sufficiently, so the federal judge, when it sends a message to the insurance agent that enables them to take cancellation measures risk. This cancellation risk communication must in time be sent to the insurance agent. that in the normal course of their timely input is expected.

The insurer shall send the cancellation risk communication by mail, so he should trust according to the BGH, in principle it, that the mailing will properly promoted and delivered on the next business day if it is abandoned in the Federal territory on weekdays. A cancellation risk communication is lost for once by post this – be it and thus the this related and thus failure post-processing measure of insurance agent – a fact not to answer the insurers have. The Supreme Court has also stated in the decision that the applicable only for insurance agents obligation cancellation risk communication on insurance agencies apply mutatis mutandis is if this is just as worthy of protection in individual cases such as an insurance agent. When this is the case, depends on the particular circumstances of each case. There must be a strong convergence of the position of the broker to the one a representative in each case. This was the case, for example, so the Supreme Court, if the broker in the organizational structure of an insurance company is incorporated and receives a grant of the Organization as well as a stock care money. Lawyer Dietmar Goerz of financial service manager sales specialized GPC Law law firm mbH believes, that the decision opened insurance intermediaries some starting points, to put up against a Commission recovery decisions to fight back”. In addition, it is now clear that under certain conditions even insurance agencies against Commission recovery can succeed in the field, that the cancellation risk communications of the insurer was not good enough”, so the Berlin lawyer. Related link: BGH, 01.12.2010 – VIII ZR 310/09

Dental laboratory services and the dental practice after a recent decision of the BGH (AZ: I ZR 231/10) it represents an inappropriate ursachliche influence on the dental diagnostic and therapeutic freedom if dentists contractually agree, can participate in a dental laboratory operated by a limited liability company with all incurred in treating their patients dental laboratory services to hire and dentists with a corporate structure on winning this GmbH. In the case the applicant concluded an operator of a dental laboratory, in 2001 a cooperation agreement with the defendant, which were established a community of practice dentists. Then this among other things undertook to instruct the laboratory for all covered dental services. But, services, where patients actively given the selection of laboratories (section 2.1.) were excluded. Previously, the applicant was founded in the same year by the present Managing Director, a dental technician master and a limited liability company.

In addition existed between the applicant and the above mentioned GmbH contracts on the establishment of a peaceful society, where the GmbH including profit rights approved to. Sole shareholder of GmbH was an AG, which was founded by the dentists in the life. End of 2005 announced the dentists the cooperation and began to operate their own laboratory. The applicant still demanded the fulfillment of the contract because it only properly could be terminated in 2011. The defendants countered, however, the agreement was null and void because it violated medical professional law taking into account the corporate agreements. You could not ask the defendant, to continue a first real of them anti-competitive behaviour. Therefore, you could cancel extremely at this time. The judge rejected the lawsuit and gave the defendants right.

They found were that the dentists by the clause in the agreement (section 2.1.) against violate dental professional right. Specifically they saw the so-called prohibition of assignment here injured, according to which it is especially not allowed dentists to demand a fee for the assignment and referral of patients or promise other benefits or grant to even promise or grant. Purpose the prohibition of this assignment is namely to prevent an unobjective influence on the dental treatment services, to prevent decisions against the interest of the patient. The dentists such restricted were cooperation in their dental freedom, that your decision to entrust only the tied dental laboratory, dental orders was no longer exclusively the interests of patients. This is also not relevant that no direct consideration was provided by pages of the dental laboratory in prospect in the cooperation agreement. Because due to the profit rights the option to influence the society existed for the dentists at any time. At the same time, the judges saw a violation of the applicant against the UWG until July 2004 applicable 1. This provision also prohibits dentists to align their decisions not only on the well-being of the patient, but to an own interest in obtaining a return. That according to the cooperation agreement, patients themselves have the opportunity to choose their dental laboratory, nothing in the outcome changed. Because just such patients who expressed no particular idea with respect to the selection of the laboratories, rely on the medical independence. Since both parties have violated a legal prohibition, therefore the underlying legal transaction, so the cooperation agreement, to be regarded as null and void, so the judge was. Other non-binding and free information around the right of professionals, see