Second SIM card mobile provider
October 29, 2009 | 25,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello,
it's about the following: During a 2-year contract with a mobile phone provider, I received a call from the provider's hotline, where I was offered a free offer for a second card. I agreed to this over the phone, but never received such an offer. After the end of the 2-year contract, I suddenly discovered that despite properly terminating the contract, I was still being charged €5.00 by the mobile phone provider. A call revealed that these were fees for the second card received. Unfortunately, I only realized at this point that the amount had already been deducted from my account along with the costs for the regular contract. Several letters to the mobile phone provider (unfortunately not sent by registered mail) remained unanswered, and a call to the provider revealed the following: I stated in this call that I never received the card, in response I was told that it was sent to me and since I did not reject the offer within the deadline, a legally binding contract had been concluded. Shortly thereafter, the second card was converted into a full-fledged mobile phone contract in the same way, meaning the tariff was changed without my consent, resulting in monthly costs of €15.00. Another letter to the mobile phone provider remained unanswered again, instead I received a letter from a debt collection agency, which was tasked with collecting the debt. I then formally objected to the demands made by the debt collection agency and requested documentation to prove the legitimacy of the claim. The debt collection agency could not provide such documentation, as it did not exist. Instead, I was informed that the claims are justified according to the client's statement and therefore a settlement is requested. I objected to this and then heard nothing for a while. Therefore, I assumed the matter was settled, but after some time I suddenly received a letter from a law firm. There, too, I requested proof of the legitimacy of the claim, but received the same response as from the debt collection agency. This week, I received a payment order from the district court, the demands in it now amount to over €400.00. This raises a few questions for me that are crucial in deciding whether I should pay the amount or object to the payment order. I somehow do not dare to object, as the legal situation is completely unclear to me. Therefore, the following questions:
1. Can a legally binding contract be formed by sending me an offer and me not objecting within a certain deadline, even if I never received it?
2. Can my approval of the contract be charged to me if I did not object to the fees debited by direct debit?
I look forward to meaningful, timely responses as I am not willing to pay the amount but want to prevent further costs arising from objecting to the payment order that I might still have to pay.
Dear inquirer,
Thank you for your inquiry!
I would like to address your question based on the information provided by you as follows:
Regarding 1.) Can a legally binding contract be formed if an offer is sent to me and I do not object within a certain period, even if I never received it?
In order to conclude a valid contract, an offer and an acceptance are generally required. Based on your description, you never demonstrably accepted this alleged contract offer, therefore no contract was concluded.
Merely remaining silent in response to an offer generally does not carry any legal significance and cannot be considered as acceptance of a contract.
A different scenario would apply if you were a merchant and had concluded this alleged contract in that capacity. In commercial transactions, silence, for example according to the principles regarding silence in response to a commercial confirmation letter, could have legal significance.
According to your description, however, you acted privately, so in principle, sending an offer and remaining silent on it would not result in a contract being formed.
According to your description, everything was done over the phone. In this context, I would also like to point out that even if a contract had been formed, you should have received a proper revocation instruction in writing. If this was not the case, the statutory revocation period of generally 14 days would not have started running, meaning that you could revoke a contract, if you had even entered into one, even now.
It is the responsibility of the other party, i.e. the mobile phone provider, to provide a proper written revocation instruction. According to your description, such a written revocation instruction was never provided, so based on your description, you could withdraw from a contract that may have been verbally concluded over the phone at any time by invoking your right of withdrawal.
Regarding 2.) Can I be charged with agreeing to the contract if I did not object to the fees debited by direct debit???
In the worst case scenario (which is rather unlikely), you could be charged with what is known as implicit acceptance of the contract, i.e. acceptance of the contract through conduct, but even in this case, you can make use of your right of withdrawal, as according to your description, you were not properly informed in writing.
According to your description, another circumstance is relevant. The cards were not sent to you, so ultimately, assuming a contract had been formed, you would have paid for a service that you would never have been able to use.
Since a legally binding contract does not seem to have been formed based on your description, you not only do not have to bear any additional costs but can also request a refund from the mobile phone company for any payments made under the principle of unjust enrichment according to § 812 of the German Civil Code.
Finally, I would like to point out the following:
The legal advice I provided is based solely on the information you provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive assessment of the circumstances.
By adding or omitting relevant information, a completely different legal assessment could be the result.
I hope this information has been helpful to you. Please feel free to contact me through the follow-up option on this portal or via my email address.
I am also available for further legal representation if needed. If you decide to retain my services, I would credit the initial consultation fee paid here in full.
I wish you a pleasant Thursday evening!
Sincerely,
Dipl.-jur. Danjel-Philippe Newerla, Attorney-at-law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax 0471/3088316
