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TopBonus Bankruptcy\insolvency proceedings Letter translated from German to English
Originally made avalable here : https://topbonus.insolvenz-solution.de/api/download/secure/Gutachten.pdf
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Dentons Europe LLP
Lawyers Accountants
Markgrafenstraße 33
10117 Berlin
germany
大成 Salans FMC SNR Denton McKenna Long
dentons.com
Dentons is a worldwide association of law firms in an association under Swiss law called Dentons Group (a Swiss association). This club provides
even no legal or other consulting services. One of the member companies is Dentons Europe LLP. The member companies and the affiliated companies
companies are separate, legally independent entities providing consultancy services to their clients worldwide.
Dentons Europe LLP is a Limited Liability Partnership, which operates in England and Wales under the Regis-
number OC 316822 is entered. A list of members may be consulted at the Company’s headquarters, One Fleet Place, London EC4P 4GD, England. additional
Please refer to the Legal Notices on dentons.com.
Germany 4094220.1
MEMORANDUM
At:
topbonus ltd.
From:
Dentons Europe LLP
Date:
5 February 2018
Subject:
To the extent of possible claims for damages of topbonus customers
no longer redeemable mileage credits
structure
A. Facts ……………………………………….. ………………………………………….. ……………….. 2
B. Question / Examination Scope / Disclaimer ……………………………………. …….. 2
C. Summary of significant results ……………………………………… ………………… 3
D. Legal Assessment ………………………………………. ………………………………………….. ….. 4
I.
Legal nature and content of mileage credit ……………………………………… ……………. 4
II. Claim basically …………………………………….. …………………………………. 4
III. Value of mileage credit ……………………………………….. …………………………………… 5
1. Premium as a standard of value ……………………………………… …………………………………. 5
2. Premium services according to type and value ……………………………………. …………………. 6
3. Premium relevant to the determination of the damage ………………………………….. 8th
4. No threshold ………………………………………. ……………………………………… 11
5. Excursus: Status Miles ……………………………………… …………………………………….. 12
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A. Facts
Topbonus Ltd., branch office Berlin, Saatwinkler Damm 42-43, 13627 Berlin (” top-
bonus “or” company “) operates the customer loyalty program” topbonus “. By the
Participation in this program is the respective customer (” topbonus participant ” or
” Creditor “) the possibility of having so-called premium and status miles on their mileage account
to have written. The basis for this are the topbonus terms of participation in each
as amended, last amended on May 24, 2017 (“Conditions of Participation “).
Award miles (hereafter referred to as ” miles “) were credited to the corresponding mileage account.
written when the topbonus participant the performance of a partner of topbonus
(” Topbonus partner “). Award miles could, according to the terms of
above a certain mileage in flight bonuses from the topbonus program
(Award flights, upgrades, companion tickets) as well as for products, services and
coupons from certain topbonus partners.
Status miles for flights with topbonus partners have only been credited, if explicitly so
was so provided. Status miles gave the customer various status benefits (eg
Lounge access, priority services, free seat reservation, etc.).
Unredeemed award miles expire after a period of 36 months at the end of the
Quarter in which they have been collected. Status miles expire 12 months after
claiming the benefit that led to the status mileage credit.
Learn more about earning Reward Miles or Redeeming Miles
Award Miles are regulated in the Terms of Participation. The topbonus mileage account and
the premium or status miles on such a mileage account are not exceeded.
portable and can not be converted into cash or paid out.
Due to the bankruptcy petition of Air Berlin PLC & Co. Luftverkehrs KG (” Air Berlin “) had
topbonus redeems earned miles for Air Berlin flights and other top-bonus
Partner initially hired on 15 August 2017. Since 19 August 2017 was also the
Mileage collection no longer possible. Following was the mileage and redemption
collected miles via the internet portal operated on behalf of topbonus.
limited scope. The hiring of the internet portal is expected in the
April 2018. 1
B. Question / Examination Scope / Disclaimer
Subject of this opinion is to check whether the topbonus participants against topbonus
basically a claim for damages for which they are no longer included in premiums
achievable miles and what is the amount of this claim.
1
Currently, topbonus participants can again earn miles on Etihad flights and at some other topbonus partners
collect. In addition, all topbonus participants can redeem their miles in a new one operated by Loylogic Inc.
Redeem pop-up shop for prizes and vouchers for service awards. These conditions are intended in
Excluded from the scope of this opinion.
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For this purpose, the legal basis for the determination of the value shall be given below
which are not redeemable miles. This mileage is intended to increase the topbonus
Assist participants in assessing to what extent they are involved in the insolvency proceedings.
claims for damages may be asserted against the assets of topbonus.
In this way, equal treatment of all creditors in insolvency proceedings should be ensured.
be ensured. It follows from this objective that individual claims for damages
individual topbonus participants are not examined.
The valuation shall be based on the point in time at which the mileage
was still fully available. The investigation is based on historical data
which are only partially reconstructed. The historical fares for the relevant
Flight segments as well as valuations of premiums and award vouchers were given to us by
provided to the company. At the mileage value determined in this report
it is an approximation taking into account the principle of
Equal treatment of all creditors.
The focus of the expert opinion is the determination of the value of award miles. As far as it is
For status miles, the report confines itself to proving that these miles
have no quantifiable value in money.
The present report is under current German law (excluding the inter-
national private law) exclusively for topbonus. topbonus is entitled to this
Report to the creditors of the company for information purposes.
Dentons Europe LLP as well as our partners and employees assume no liability for the
Accuracy and / or completeness of the present report to the creditors.
Any claims for intentional conduct that are subject to mandatory statutory
not be excluded, remain unaffected. The creditors are
to commit the contents of this report or any extracts thereof confidentially
and not without the prior written consent of Dentons Europe LLP
To disclose to third parties.
C. Summary of significant results
• The miles earned are not payable in cash and are not transferable. The top
However, bonus participants are entitled to claim topbonus compensation in
value of their non-redeemable miles.
• The value of a mile is always determined by the average value
the premium into which the mile could typically be redeemed. decisive
is the value that the premium had at the time the miles of the top
bonus participants could not be redeemed.
• However, due to the limited availability of
Availability of premiums does not depend solely on the value of the premium with the best
Euro Miles value, but it is based on the value of the premium
whose redemption was most likely. These were the premiums
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Germany 4094220.1
which could possibly also be obtained by additional payment. This results in a
Mileage of 0.36 eurocents per award mile .
• A threshold does not apply because mileage credits below the
lowest premium of topbonus participants acquired at least one expectancy
Has. Their value is determined by the corresponding mileage value.
• The omission of the status miles does not represent any compensationable damage.
D. Legal Assessment
I.
Legal nature and content of mileage credit
According to the terms and conditions, the miles collected are credit memos.
Miles are awarded to topbonus participants on a so-called mileage account.
benefit from the performance of a topbonus partner and
to exercise collective rights. This credit can be the topbonus participants in the
Redeem topbonus partners in rewards. The mileage credit is calculated in accordance with para. 2.1. Paragraph 3, sentence 1
the terms of participation are not transferable and can not be converted into cash or
be paid.
Case law assigns mileage credits in customer loyalty programs as repatriation
remuneration which is not payable in cash but only for the price
premium are chargeable. 2 This is followed by the specialist literature. Thereafter, the
lengutschrift an abstract guilt promise i. P. D. § § 780, 781 BGB of the offerer of the
Miles program, which the Miles program participant with the one chosen by him
Premium. 3
As a program provider, topbonus is committed to ensuring that the topbonus
Participants can redeem the mileage credit with the topbonus partners in a premium.
This results in the interpretation of the regulations in no. 2.4. Para. 1 sentence 1 and para. 2 sentence 1 of
Conditions of Participation, which implicitly assume that topbonus is responsible for the redemption
ensures. The obligation is subject to the condition that the corresponding premium is available.
If this is the case and the topbonus participant redeems his miles for the award,
topbonus awards the topbonus partner the premium selected by the topbonus participant. hereupon
is the claim of the topbonus participant.
II.
Claim basically
Each topbonus participant is fundamentally entitled to a claim for damages against topbonus.
claim gem. Sections 280 (1), (3), 281 (1), 2 al. 1 or 283 p. 1 BGB in the amount of the value
his no longer redeemable mileage credit.
2
BGH, judgment of 28 January 2010 – Xa ZR 37/09, NJW 2010, 2046 (2047).
3
See Lehmann-Richter , in: Graf von Westphalen, Contract Law and GTC clauses, 39. EL May 2017, Abonne-
ment contract, para. 4, 22-24 mw N .; Note Lehmann-Richter to OLG Cologne, judgment of 8 January 2013 – 15 U 45/12,
NJW 2013, 1454.
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topbonus was contractually obligated to topbonus participants to ensure that
that the topbonus participants exchange miles for premiums at the topbonus partners and
be able to get a premium this way. Topbonus is guilty of this obligation
violated, provided that the Internet portal has been set and thus the redemption option in
Non-cash premiums were canceled. This does not contradict that topbonus according to para. 2.4 para. 2 sentence 2
as well as point 2.4. Paragraph 1 sentence 3 of the Conditions of Participation, the premiums are only
just had the availability offered. Because this restriction does not apply to one
permanent adjustment of the redemption option per se, but only on the availability
agreed bonus types. With regard to the redemption option in flight awards topbonus is not
Breach of duty, as Air Berlin has no air traffic due to the bankruptcy filing
premiums offered more and thus a redemption was impossible.
The claim for damages is also not the exclusion of liability according to para. 4.4 sentence 2
of the conditions of participation, as the hiring of the Internet portal will
followed. The termination of the bonus program constitutes a breach of a material
If such an obligation is violated, the liability shall include all amounts
Property and pecuniary losses that are foreseeable, typically occurring
Represent damage. In the present case, such damage is in the depreciation of the
Miles credited to the mileage account but not redeemable.
The amount of damage to be compensated for each individual case is determined by the number of
Miles of the respective topbonus participant and the value per mile.
III. Value of mileage credit
1.
Premium as a measure of value
The mileage credits could only be offered in topbonus’ internet portal
Rewards of the topbonus partners are exchanged. The value of a mile is determined by
first and foremost on the value of the premiums for which they could be redeemed. this
The standard also applies to case law in decisions that are in conflict with the value of
to deal with. 4
A similar standard of valuation also follows from the tax classification
§ 37a (1) sentence 2 EStG in conjunction with § 8 (2) sentence 1 EStG for the case of actual redemption
in premiums. Thereafter, the basis for the flat rate income tax
the total value of the premiums paid to the taxpayer. These premiums are as
non-revenue incomes with the usual final prices at the place of delivery, less the usual
discounts. The decisive factor is then according to section 8.1, paragraph 2
LStR 2015 the price, which in the general business of last consumers in the
Most of the sales cases at the place of delivery for similar goods or services
is paid.
4 OLG Cologne, judgment of 8 January 2013 – 15 U 45/12, NJW 2013, 1454 (1456).
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The claims of the topbonus participants due to their no longer being redeemable
credit balances are quantifiable claims for damages pursuant to §§ 280 (1), (3), 281 (1),
2 alt. 1 Civil Code. To determine the amount of the claim for damages is at the time
before August 15, 2017, because at this time the mileage program last time
was fully available.
Second
Premium services according to type and value
The value of an award mile varies depending on the type and thus the value of the
Premium into which the award mile can be redeemed. Rewards can
or upgrades or the purchase of topbonus products or services.
Be partners. The price in miles for a reward flight is determined in accordance with para. 2.4.1. Section.
1 sentence 2 of the conditions of participation according to the premium table of Air Berlin or another
ren partner airline of topbonus. Benefits in kind and vouchers for services
according to para. 2.4. Paragraph 2 sentence 1 of the conditions of participation of the topbonus partners according to the
independently offered business and delivery conditions.
a)
flight performance
The value of a flight award corresponds to the fare a topbonus participant wears in mid-August.
2017 would have had to pay for a flight in the future, provided that
Flight segment would have been available as a reward flight. What value for this flight
miles spent depends on whether the topbonus participant has his miles for
set up a free flight, for a bonus flight or a companion flight. Reason is that
the number of miles to be used per flight after the chosen premium segment
fluctuates. It should also be noted that the actual market prices for flights on their part
are dependent on the time of booking.
The value of the mile to be used for a given service corresponds to the quota
calculated from the average market price of the corresponding flight and the number of
required miles (fare per mile).
aa) free flight (including taxes, fees and fuel surcharge)
A free flight is a reward flight in which the total fare includes taxes, fees
and fuel surcharge is paid with award miles. Taxes in the above sense are
the taxes to be paid by the topbonus partner (air traffic tax, etc.). fees
are the fees to be paid by the topbonus partner, such as: B. the take-off and landing
fee etc.
The value of a premium mile used for a free flight was accordingly
the information of the company at least about 0.38 Eurocent .
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bb) Award flight (excluding taxes, fees and fuel surcharge)
For a reward flight, the fare is exclusive of taxes, fees and fuel surcharge
paid with award miles. The value of a reward flight mile can be determined by
that the quotient of the average market price of this flight (minus
the proportionate expenses for taxes, fees and kerosene) in euros and the price
This flight forms in miles.
The value of a premium mile used for a reward flight was
at least 0.41 euro cents .
cc) Companion flight
For companion flights, the topbonus participant paying a free or premium
Flight booked in Economy Class, for an accompanying person 50% of the Mileage Price
he himself had to spend the ticket, excluding taxes, fees and kerosene.
The companion flight could only be combined with a flight in Economy Class.
be booked.
The value of a flight reward for a companion flight is also the same as the fare
Flight booked before August 15, 2017. The value of a companion mile
determine by taking the quotient of the price of this flight (exclusive
Taxes, charges and kerosene) in euros and the price of this flight in miles (here so the
50% reduced mileage from the ticket for the flight). However, it is too
Consider that when using a mileage balance for a companion flight
always a corresponding flight had to be booked as the main flight. Therefore can not
the value of the miles used for the companion flight, but
It is the use of miles for the main flight to be considered. This is the sum
of the market price for both flights by the sum of the one for the main flight and for the premium
share mileage credit.
The value of a premium paid for a companion flight (together with main flight)
According to the company, mile was at least approx. 0.54 eurocents .
b) Flight upgrades
According to para. 2.4.3. Clause 1 of the conditions of participation entitle to upgrade premiums for
Flight in another class. There is an upgrade according to para. 2.4.3. Sentence 2 of the Participation
conditions for only one Economy Class long-haul flight ticket (FlyDeal, FlyC-
lassic or FlyFlex) or for a confirmed award ticket. For the acquisition of a flight
Upgrades required the topbonus participant to book an economy flight or award flight.
chen; After confirming this booking, he was able to order an upgrade by phone. Of the
The value of an Upgrade Award is equal to the difference between the price of a flight booked in
will be booked in Business Class before August 15, 2017
and the price of a flight booked in the same flight segment in economy class
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becomes. If this amount is divided by the amount spent on the acquisition for this flight,
len, one obtains the value expressed in euros per award mile.
With regard to award miles used for upgrades, their value was, according to the
Company at least about 0.42 euro cents .
c)
Premiums and bonus vouchers for services and vouchers
After no. 2.4. Para. 2 p. 1 of the conditions of participation, the award miles could also be used for
Purchase of products and vouchers for services from topbonus partners
become. These bonuses were awarded to topbonus participants via topbonus
Acquire internet portal. 5
The value of a non-cash consideration corresponds to the value at the time of the adjustment in
The non-cash prizes offered to the internet portal, for which the topbonus participant covers his miles
could redeem. The value of miles spent on the reward is equal to
Quotient of the purchase price of the thing offered for the redemption and the used
Miles credit. It was the topbonus participants possible, if not enough
Mileage credits to make an additional payment in euros. As a result, a high level of
availability of the material premiums. The required additional payment was according to the
Company 0.36 euro cents per missing mile. Thus, the value of one for a
bonus premium amount 0.36 euro cents .
A topbonus participant was also able to award his award miles in vouchers for services
redeem from topbonus partners or in vouchers, which at www.amazon.de into products
were redeemable (Amazon voucher). He was then able to allocate these vouchers pro rata to the remuneration.
for a service or service of which he is a party
Allow the purchased product to be credited to www.amazon.de. When miles are redeemed in vouchers
were, according to the company regularly a value of 0.36 eurocent per
Mile basis, amazon vouchers 0.31 euro cents.
Third
Premium relevant to the determination of the damage
a)
Determination of damage
According to general civil law principles, damage is determined by
goods and assets of the injured party, taking into account the injurious
Event is determined and then compared with that state in which the
damaging event would not have occurred. Is there a difference between the two states?
rence, this is the damage. 6
5
From no. 2.4. Par. 1 S. 5 of the conditions of participation follows that information on the availability of the products and the
further premium services were available at www.airberlin.com/en/
6 BGH, judgment of 19 May 2009 – IX ZR 43/08, WM 2009, 1376 (1378); Oetker , in: MüKo BGB, 7th edition 2016, § 249 Rn.
19; Teichmann , in: Jauernig, BGB, 16th ed. 2015, Vorb. §§ 249-253 Rn. 3 ff.
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After this scale, the damage of topbonus participants will no longer be their miles
the difference between the financial position
fulfillment (premium retention after redemption) and the actual financial position (premium
loss due to non-redemption).
b) Concrete damage
In accordance with the principles of the law of damages, damage is in principle to be determined concretely.
stuffs. 7 Scale is thus the single topbonus participant and the damage done to him by
the loss of the possibility of redeeming his miles in individual cases. That the
Case law in individual decisions on bonus programs 8 on the typical
depreciated customers, is not decisive for the damage calculation. Because the
Appropriate judgments dealt with the interpretation of AGB, which – unlike the individual
Damage calculation – typical.
The actual damage of a topbonus participant depends on the value of the premium into which
he can not redeem his mileage credit. What is the value of a premium for the top-
nus participant is expressed by the euro prize of the premium per mile. This price
may vary depending on the premium. This leads to the question of what euro price per mile in
It must therefore be decided on a case-by-case basis for which premium benefit a topbonus participant
would have divorced. The case law has formulated the principle that the participant
of a loyalty program would always opt for a bonus that would give him the
brings the highest yield. 9
c)
Limited availability
However, within the scope of the compensation assessment of the mileage credit
take into account that the abovementioned premiums were not fully available.
Topbonus had according to Ziff. 2.4 para. 2 sentence 2 and para. 2.4. Paragraph 1 sentence 3 of the participation
conditions the premiums are only offered subject to availability. So,
For example, an upgrade flight to North America only very rarely bookable. Vouchers were
however very often offered.
Consequently, when calculating the value of an award mile, the value of the
Premium with the best euro miles value, but by the value of the
Premium whose redemption was most likely. Because this was the premium into which the
The majority of topbonus participants could have redeemed their miles before August 15, 2017.
NEN.
7 Cf. Grüneberg , in: Palandt, Civil Code, 75th edition 2016, Vorb. § 249, marginal no. 21; Teichmann , in: Jauernig,
BGB, 16th edition 2015, Vorb. §§ 249-253 Rn. 50th
8 BGH, judgment of 23 June 2004 – IV ZR 130/03, NJW 2004, 2589 (2590); BGH, judgment of 15 April 2010 – Xa ZR
89/09, NJW 2010, 2942 (2944); Cologne Higher Regional Court, Judgment of 8 January 2013 – 15 U 45/12, NJW 2013, 1454 (1456).
9 This economic analysis is (indirectly) above all OLG Cologne, judgment of 12 June 2013 – 5 U 46/12, juris Rn.
166 ff .; See also the 4th Guideline of the decision at BeckRS 2013, 10145.
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All other premiums, on the other hand, can not be taken into account as a benchmark.
This follows already from the general damage law principle that damages, whose
Admission is outside of any probability, not substitutable (adequacy theory). 10
Whether the occurrence of damage had a low probability, is by way of a
to determine objective subsequent prognosis from the point of view of an optimal observer. 11
all circumstances which were identifiable at the time of
gen. 12 In the case of award miles with topbonus this is firstly the contractual provision in
the terms of entry, which is the redemption in bonuses for all topbonus participants
clearly subject to the reservation of availability. On the other hand, this is the
The actual availability of the premiums, which is recognizable to all topbonus participants,
bar swayed. These circumstances suggest, from the point of view of an optimal observer, that it is
upon proper provision of the redemption option was unlikely to
purchase only limited premium.
After that, the loss of the ability to move miles
redeemable premium in order to cover damage that is also duly
native term of topbonus would have occurred. Such damages are usually not substitute-
capable because they are not covered by the protective purpose of the injured cockpit. 13
If the premium with the highest euro price per mile would be used as a basis for
Consider this would favor the topbonus participants as injured because with it
the loss of a chance in money would be replaced. But this contradicts the damage law
14 enrichment 14 and the principle that the mere loss of an opportunity is not
is replaceable. 15 Also due to the principle of equal treatment under insolvency law
the creditor seems to have to rely on the value of the premium performance, which with
high probability was available and thus would have been from any topbonus participant in
Claim can be taken. These were the premiums, which possibly also by
Additional payment could be obtained. As shown, the mileage at this 0.36 euro
rocent per used award miles.
d) Comparison
Another indicator of the mileage value may also be the transfer price
between topbonus and the relevant topbonus partner for redemption
was agreed by mileage balance. Because this was constant and independent of the
Availability of the premium.
10 General: BGH, judgment of 11 January 2005 – X ZR 163/02, NJW 2005, 1420 (1421); Flume , in: BeckOK BGB,
Bamberger / Roth / Hau / Poseck, 43rd Edition, as of: 15.06.2017, § 249 marg. 52nd
11 OLG Hamm, judgment of 7 November 2012 – I-30 U 80/11, NJW-RR 2013, 349 (350).
12 Cf. Grüneberg , in: Palandt, Civil Code, 75th edition 2016, Vorb. Section 249, marginal 27 m. W. n.
13 BGH, judgment of 9 March 2012 – V ZR 156/11, NJW 2012, 2022 (2023).
14 On this principle: Flume , in: BeckOK Civil Code, Bamberger / Roth / Hau / Poseck, 43rd edition, as of 15.06.2017, § 249
Rn. 52 mw N.
15 In addition to the fact that opportunities can not be considered in terms of damage law: Grüneberg , in: Palandt, Bürgerliches Georges
code, 75th edition 2016, Vorb. Section 249 marginal 53rd
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The principle is recognized in the law of damage, damage and damage-reducing factors
with the help of comparison groups. 16 As a comparison group, the
nis between topbonus and the topbonus partner fixed transfer price per mile
be used. Because from the fact that the topbonus partner
accepts the transfer price paid in euros per mile, it follows that every mile
least the value of this transfer price must have. 17 Even if the claim of the
topbonus participant on redemption of his miles by exchanging in bonuses alone against
topbonus can, therefore, for the valuation comparatively on this third-party relationship
be turned off.
The transfer price, the topbonus and the topbonus partners attach a mile,
According to the information provided by the company, it contributed 0.36 euro cents for bonuses and vouchers (at
amazon vouchers 0.31 euro cents). The transfer price for premiums in the form of an air fare
was 0.40 euro cents. This transfer price corresponds to the material premiums
also the above mentioned mileage value for premiums, which at the time of
Setting the Internet portal was valid.
In view of the fact that redemption in kind premiums was far more likely
than in flight awards is to be based on the mileage value for premiums. The damage of the
individual topbonus participant per unredeemed mile is thus:
0.36 euro cents per mile .
Thus, in individual cases, it is not excluded that a topbonus participant
would have been able to redeem the premium with a higher euro-mile value. This
but he would have to explain and prove in a civil proceeding, 18 the success of which
would decrease with increasing number of plaintiffs. The reason is that with a
number of claimants, which is a cash-on-premium
claim, due to the limited availability, the probability of the actual
Redemption, and thus the alleged loss of property, would decline.
4th
No threshold
Topbonus participants who had not yet earned enough miles to
may acquire the pro rata value of this premium in
Claim the amount of their mileage credit as damage.
The mileage is independent of reaching a threshold and each mile leads
for the creation of a valuable, expectant-like position for obtaining an award
from the topbonus program. Because the conditions of participation do not currently
least milage credit or a threshold for redemption
16 Cf. about the typical comparison groups at Oetker , in: MüKo BGB, 7th edition 2016, § 249 marginal. 198 (replacement of
applications), marg. 228 (benefit adjustment).
17 This applies regardless of the price of the individual bonus in miles, which the topbonus partner varies as required
can.
18 Cf. Oetker , in: MüKo BGB, 7th edition 2016, § 252 Rn. 32 to speculation gain.
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of award miles as part of the topbonus program. The recoverability of miles
is therefore recognized as being detached from the possibility of acquiring a premium
NEN.
With mileage credit, the topbonus participant had a prospective, valuable
Legal position attained. A right to expectancy arises when a multi-annual
so many requirements have already been met that a secure legal
position of one contracting party, that of the other contractor
no longer able to destroy one-sidedly. 19 A secure legal status has in particular
the one who acquires a right under a suspensive condition. 20 Because until
If the condition occurs, he is subject to interim injunctions of the transferor. § 161 Abs. 1 BGB
and gem. § 162 Abs. 2 BGB protected against the thwarting of the condition entrance.
The topbonus participant is in a comparable mileage credit due to the respective mileage credit
Legal status: He has a claim against topbonus on the basis of the conditions of participation.
claim that it gives them the opportunity to earn their miles in a premium.
if he has collected enough miles to earn a certain premium and he
asserts its claim for provision of the redemption option. The possibility,
To redeem miles for a bonus is conditional on the achievement of the respective
premium price and the statement of the topbonus participant that he
makes use of it.
This legal position loses the topbonus participant according to para. 2.5 P. 1 of the participation
the mere fact that he refrains, his claim to redeem his miles
in a premium over a 36 month period at the end of the quarter in which he
has collected his miles to claim. Whether the topbonus participant
loses position, he can thus influence himself.
The value of an entitlement corresponds to the proportional value of the right, in which the
After having entered the condition, ie, the pro rata purchase price of this
Right. 21 In the present case, this is the correspondingly determined mileage of the corresponding
topbonus participants earned miles.
5th
Excursus: Status Miles
Based on the collected in a given period status miles determines the
Status of the respective topbonus participant. Due to the nature of the action, other prerequisites
apply for obtaining a status. Within the scope of the topbonus program,
various topbonus card types are issued indicating the status of the topbonus participant
establish.
19 BGH, judgment of 5 April 1991 – V ZR 39/90, NJW 1991, 2019 (2020); Bork , in: Staudinger, Commentary on the Civil Code –
Book 1: General Part, Revised 2015, Vorb. V. §§ 158-163, marginal 53rd
20 Cf. Bork , in: Staudinger, Commentary on the Civil Code – Book 1: General Part, Revised 2015, Vorb. §§ 158-
163 Rn. 58 ff; Westermann , in: MüKoBGB, 7th ed. 2015, § 161 marginal. 1 ff.
21 For the valuation of entitlement rights cf. Koch , in: MüKo BGB, 7th edition 2016, § 1376 Rn. 12
Cziupka , in: BeckOK BGB, 43. Edition, as of 15.06.2017, § 1376 Rn. 39th
5 February 2018
Page 13
大成 Salans FMC SNR Denton McKenna Long
dentons.com
Germany 4094220.1
After no. 2.7 P. 4 of the conditions of participation, it is topbonus free, benefits for holders of
to offer or discontinue topbonus cards status-dependent, provided that participants thereby
not unduly disadvantaged. Likewise, these benefits can also be
offered / discontinued. Status miles expire in accordance with para. 2.5 of
Conditions of participation 12 months after claiming the benefit, which
ledger. The services provided by topbonus and its partners were therefore
subject to the condition that the status-related benefits of each
time can be changed. The status miles or the status obtained can be due to
no independent economic value is attributed to the aforementioned contractual arrangements.
be meadows.
The benefits associated with the status are not recoverable under tort law.
Because the loss of utility advantages is an asset of the case law
only if the claimant relies on their constant availability
is. 22 Therefore, the right to compensation is limited to things that are typically
vital living conditions are of central importance (such as car rental, housing
or Internet access). 23 Such a position is associated with the status advantages (special position
for flight bookings and availability of flights, lounge stay) not connected.
In the absence of a legally regulated model for customer loyalty programs, topbonus
determine independently whether and which incentives are given to the topbonus participants
should. 24 It follows that with the status miles also no legitimate legal position
whose withdrawal causes a claim for damages.
***
Dentons Europe LLP
22 BGH, order of 9 July 1986 – GSZ 1/86, NJW 1987, 50 (51); BGH, judgment of 24 January 2013 – III ZR 98/12,
NJW 2013, 1072 (1072).
23 Cf. Grüneberg , in: Palandt, Bürgerliches Gesetzbuch, 75th edition 2016, § 249, marginal no. 49th
24 BGH, judgment of 28 October 2014 – X ZR 79/13, NJW 2015, 687 (689).
