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Some people come up with interesting ideas to enforce their – alleged or existing – claims. By no means everything is legally permissible.
Some people who have a claim for payment under a purchase contract, for example, think it is a great idea to threaten the buyer or, in the event of a reversal, the seller with a criminal complaint for fraud.
We see this happen time and again to private individuals who sell their old television for less than €60 (accusation: the television, which the buyer inspected as working when he collected it, was defective) as well as to commercial dealers, the latter often in the course of a reverse transaction. Some people are not too shy to go to the public prosecutor’s office for an allegedly owed amount of €2.50 shipping costs (purchase price had been refunded) or, if they do not receive the desired delivery or refund within an often unachievably short period of time, to – as one such customer once put it – “press charges”.
This is not, as the linguistic usage trivializes, a harmless classified ad that can be “taken back” if the demand is met, but a criminal complaint that has tangible consequences for the person concerned.
The Regional Court of Cologne (LG Köln, Urteil v. 16.9.2009, Az. 28 O 457/09) had to decide on the admissibility of another threat.
The opposing party was prohibited from doing so by a temporary injunction,
“to threaten the applicant with contacting his colleagues at the NRW tax authorities in his function as head of the Rhineland-Palatinate tax authorities if the applicant did not deliver the ordered television to the defendant by 15.07.2009.”
The defendant had ordered a television. When there was a delay in its delivery, he sent an email to the claimant in which he announced an adventurous 6-step plan. One of the stages is reproduced above.
The decisive question is whether such behavior constitutes coercion under § 240 StGB. The definition of coercion is very broad. A threat of a serious evil in order to achieve an act can be anything. Therefore, the offense stipulates that this threat must also be “unlawful”, § 240 Abs. 2.
The BGH states in its decision of April 19, 2005-X ZR 15/04:
“The unlawfulness of a threat may result from the threatened means, the desired end or the inadequacy of the end and means (end/means relationship).”
He is quite generous when it comes to threatening rights and legal remedies, even if the alleged right does not exist but the person making the threat believes it does or has a legitimate interest.
In the present case, however, the situation was different, as the defendant had not limited himself to threatening to take conventional civil and criminal action, but had threatened to “blacken” the applicant in his function as a tax official with his colleagues in NRW. The announced denigration alone constitutes a serious violation.
A threat is unlawful if the means and purpose are not unlawful on their own, but their combination – the use of this means for this purpose – is contrary to the sense of decency of all fair and just thinkers or contrary to good faith, i.e. if the threat is not an appropriate means of achieving the desired result (ständige Rechtsprechung. des BGH, NJW 1982, 2301).
This was the case here. Forcing the basically legitimate purpose of the delivery of an ordered and paid-for television by means of exploiting his position as a civil servant to blacken the applicant’s name with his colleagues in the tax administration because of a completely unrelated matter was unacceptable.
Accordingly, the Regional Court of Cologne confirmed its order on the following grounds (excerpt):
“The statement at issue also constitutes an act of coercion within the meaning of § 240 StGB. The behavior of the defendant in the injunction is reprehensible. The reprehensibility of the statements in dispute can result from the fundamental priority of state coercive means when enforcing an alleged delivery claim. If state assistance can be obtained in time, the person concerned must in principle call in the police or describe the legal process; if he nevertheless or moreover resorts to self-help in order to enforce the (alleged) law-abidingness of others, his conduct must be classified as reprehensible.”
“Conversely, however, the unlawfulness of coercion is not excluded by the fact that the means of coercion as such is permitted. The fact that one is entitled to carry out a certain action, such as making a report to the tax authorities, does not mean that one may simply threaten another person for the purpose of coercion. This is certainly not the case if there is an inadequacy between the threat and the intended purpose (vgl. Schönke/Schröder, StGB, 27. Aufl., § 240 Rn 19 a f. m. w. N.; § 253 Rn. 4 zur sog. „Chantage“).
This is the case here, as the defendant in the injunction could have taken legal action. (…)”
Various legal means are available for the enforcement of civil law claims. Unlawful threats are not one of them.
Disclosure: Our law firm represented the applicant.
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