New developments in case law and legislation after up to the 1.10.2013 current version of article 17 paragraph 2a sentence 2 No. 2 should BeurkG work the notary in consumer contracts, that the draft Treaty is the consumer two weeks prior to the certification. The Supreme Court (judgment of 7.2.2013 – III ZR 121/12) this – contrary to contrary literary voices and attestation practice – made it clear that if this rule have not expired, the notary only may require, if the interests of the consumer are demonstrably maintained in other ways. Otherwise, he is liable for damages. In the decisive case of complaining consumers by a property developer bought two rented condominiums. Since the two-week time limit could not be kept up, the notary recorded an extensive instruction in the contract, where this fact is pointed out. It is there that the purchaser informed the waiting period and the risks on an immediate certification have passed. Shortly after conclusion of the contract, it comes to disputes over the apartments.
The buyer claimed Defects and challenged the contract. He demanded the costs incurred by the amicable agreement between seller and buyer of the buyer by the notary as claims for damages on the grounds I may not notarize the contract due to lack of expiry of the waiting period this and so violated his duty. This was followed by the Supreme Court. Sense the waiting period of 17 paragraph 2a sentence 2 No. 2 Beurk G is to prevent (especially) consumers appear unprepared to the notary and often not sufficiently elucidated in the certification. Therefore should familiarize consumers in advance of certification with the text of the Treaty to consider, what questions he will judge at the notary.
Note: An exception of the 2-week period comes after that case-law only consider, if an is a factual reason given (E.g. upcoming holiday absence) and the notary has verified, is that the protective purpose of 17 paragraph 2a sentence 2 No. 2 fulfilled BeurkG in other ways, for example, through a legal advice of the consumer. Legal strengthening of the two-week period of 17 paragraph 2a sentence 2 No. 2 BeurkG now has the Bundestag on the 18.4.2013 the Act to strengthen consumer protection in the notarial attestation procedure decided that for contract validity claims, which are certified according to the 1.10.2013. The notarization law is changed as far as on the two-week period as a dispatch of the text of the proposed purchase agreement may be only those notary (or whose partner), later making the certification. The previous possibility that the acquirer obtains the contract text above other people, in particular the seller or a broker, is thus eliminated. Should in some cases by the waiting period of rule 14 days derogated from are, must the reasons for this existing now mandatory in the document specified.