In its decision of 6 October 2021 (XII ZR 11/20), the Federal Court of Justice (BGH) ruled that the obligation of the tenant of a store in a shopping center to operate and keep the store open, as agreed in a standard form contract, does not constitute an unreasonable disadvantage, even in combination with a lack of protection against competition, if it is not linked to a sufficiently specific product range obligation. In accordance with the previous case law of the BGH, the agreement in the form of a contract of a cumulative combination of an obligation to operate and to remain open with a narrow product range obligation is not in line with Section 307 (1) of the German Civil Code (BGB). In the event of an exclusion of the protection against competition under a form contract, the landlord restricts his main obligation to perform. This constitutes an unreasonable disadvantage within the meaning of Section 307 (2) of the German Civil Code (BGB) if the achievement of the purpose of the contract is thereby jeopardized. This is the case if, in a typical shopping center, any protection against competition is excluded by a form lease agreement, but at the same time an operating obligation with a narrow product range is imposed on the tenant. The tenant would then be denied the possibility of reacting to a competitive situation by adjusting the product range accordingly or shortening the operating hours in order to reduce costs. However, the tenant would only be placed in this situation of unreasonable disadvantage if the agreement contained a strict product range obligation, but not in the case of a very vague definition of purpose and product range, which had a diffuse scope that could hardly be limited in scope.
Furthermore, the BGH ruled in this decision that the termination of the lease agreement for cause by the tenant does not require a prior warning if the landlord has the intent to defend a false operating costs statement with untruthful information.