DM, and 275 DM respectively, plus 5.95 DM claimed as incidental expenses. After failing in the lower courts, the defendant appealed (Revision) to the BGH, arguing that the underlying cheque-issuance contracts (Scheckbegebungsverträge) were invalid. His case was based on § 138 BGB, which states that transactions contrary to good morals are unenforceable. The defence argued that using cheques to settle large debts from consumption in such bars should generally be seen as immoral and thus legally invalid. The BGH strongly dismissed this argument, affirming the validity of the cheque agreements and basing its decision on the particular facts of the case rather than on a general moral assumption. The Court highlighted several key factors that refuted any claim of immorality. Firstly, it was shown that the defendant had entered the bar without cash, having already decided to pay by cheque and explicitly stated that he was willing to spend up to 5,000 DM. Secondly, there was no evidence that he had been lured into entering or misled about the prices; he was neither enticed nor taken by surprise. Thirdly, under these circumstances, the plaintiff’s conduct in extending credit until the end of the visit and accepting a cheque as payment could not be deemed inappropriate, especially since the expenditure stayed within the amount the defendant had initially indicated he would spend. The German Supreme Court further clarified that the cheque was used appropriately for its intended purpose—payment—and not as a means to create an evidentiary disadvantage for the debtor. It explicitly distinguished this case from scenarios involving fraudulent or exploitative conduct. Specifically, it referred to a previous decision of the Regional Court (Landgericht) of Hamburg, where a bar owner habitually kept pre-printed bills of exchange (“Neppwechsel”) for customers to sign, an arrangement suggestive of predatory intent. By contrast, in this case, the cheque was issued by the customer himself and served a legitimate commercial purpose. On these grounds, the BGH concluded that there was no basis to invoke § 138 BGB to exempt the defendant from the consequences of issuing the cheques. The appeal was therefore dismissed, and the judgments of the lower courts were upheld. The defendant was ordered to pay the amounts represented by the cheques, along with interest and costs. The contracts for issuing the cheques were deemed fully valid and effective. Carlos Torres LII
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