Higher Regional Court of Hamm agrees with DR. SARAFI's argument on Section 817 p. 2 BGB in recoveries from players against online casino
From our press archive. This communication gives the status of the original publication of 16 May 2023 again. Subsequent developments in the process are not automatically taken into account.
Since the judgment of the Gießen Regional Court of February 25, 2021 (Ref.: 4 O 84/20), which for the first time awarded a plaintiff player a claim for repayment of gambling money wagers against an online gambling provider, a wave of lawsuits has been triggered.
As a result, lawyers and legal cost financiers have opened a lucrative business model. Since the repayment cases are very similar in individual cases, it is possible to check the existence of repayment claims partially automatically and to easily create corresponding pleadings using intelligent templates. From a lawyer's point of view, legal advice is therefore possible in many cases with only a small amount of work. In order to attract a large number of clients, a free initial lawyer's assessment is often used.
The decisive factor for the outcome of a player lawsuit against an online casino for repayment of the bets made is often the question of whether Section 817 p. 2 BGB should be reduced teleologically.
In the case of a teleological reduction, a court “exceptionally” does not apply a law, although this law fits the facts and would apply in principle.
A great many district courts had affirmed a teleological reduction.
Dr. SARAFI pointed out in a specialist legal article from 2022 that the courts are making a mistake when they teleologically reduce Section 817 p. 2 BGB. Even in the past, the Federal Court of Justice itself has Section 817 p. 2 BGB in the so-called “undeclared work cases” — which usually involved craftsmen who worked without an invoice so that they could collect profits past the tax authorities and save the clients 19% sales tax — teleologically reduced and did not apply. However, the Federal Court of Justice acknowledged its mistake a few years later and began to deny both sides, i.e. the craftsman's claim to payment of wages and/or the client's claim for warranty for defects, as both parties had violated the Black Employment Act (SchwarzArBG).
Dr. SARAFI has deduced in legal dogmatic terms that these principles must also be applied in player lawsuits.
For the first time, the Higher Regional Court of Hamm agreed with this argument in its judgment of 21.03.2023 — 21 U 116/21:
“Based on the wording of the provision, the ratio behind Section 817 p. 2 BGB (namely: general prevention) must be helped to achieve a breakthrough and decide on the (non) application of the standard on this basis (Thöne, JuS 2019, 193, 200). A restrictive interpretation of Section 817 p. 2 BGB is therefore out of the question with regard to compensation paid in black without a corresponding invoice showing the sales tax. In such a case, there is no compensation of value between the contracting parties. Anyone who deliberately disregards the prohibition contained in the Anti-Illegal Employment Act should remain defenceless in accordance with the legislator's intention and be prompted not to conclude the prohibited transaction. The exclusion of an enrichment claim with the deterrent effect to it is an appropriate means of promoting the legislator's objective expressed in the explanatory memorandum of law by means of civil law. This applies to enrichment claims by both the contractor and the customer, who has agreed to conclude a work contract that violates the prohibition of Section 1 II No. 2 SchwarbG (NJW 2015, 2406, 2407).
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Diese Überlegungen sind nach Auffassung des Senats auf die Fallkonstellation der Teilnahme an einem verbotenen Glücksspiel zu übertragen, denn auch insofern kann die Verwirklichung des Gesetzeszwecks, welcher auch dem Straftatbestand des § 285 StGB zugrunde liegt, am wirksamsten erreicht werden, wenn auf beiden Seiten Rückforderungen wirksam ausgeschlossen sein können (Sarafi, ZfWG 2022, 149, 152).“
We are very pleased that a renowned court such as the Higher Regional Court of Hamm, whose case law is used as exams for state law exams due to its dogmatics, has agreed with our argument and has thus rejected the case law of many district courts.