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Отмена на основании § 312g BGB in connection with § 355 BGB.
since the landlord used a professional agent/broker (in this case Wunderflats.com) for the conclusion of the contract, even if he was not actually an entrepreneur in the sense of § 14 BGB, he must of course also accept their entrepreneurship in the sense of § 14 BGB.
Furthermore, the mere assertion that the landlord is a private person and not an entrepreneur is also to be doubted in principle.
According to § 14 BGB, a private person is always an entrepreneur if he acts in the exercise of his commercial or independent professional activity.
And this requires neither a specific trade nor a liability to VAT on the part of the landlord.
In principle, the renting of real estate such as flats is exempt from VAT, so that it cannot be an argument if the landlord points out that he does not charge VAT, which, as I said, almost all commercial landlords of flats and real estate do not do.
As soon as the private small landlord rents out the flat in order to earn an income, he acts as an entrepreneur in the sense of § 14 BGB.
And this can simply be assumed here.
The Federal Court of Justice has ruled in this respect that an entrepreneurial act always exists if the actions of a natural person can be clearly and unequivocally attributed to a commercial or independent professional activity from the perspective of the other party.
If someone as a landlord rents out his property to third parties in return for a corresponding rent, this is in any case to be seen as a "gainful activity", i.e. an action aimed at generating income, which is thus to be attributed without doubt to a commercial or self-employed professional activity of this landlord.
If the landlord disputes this, i.e. further claims that he did not rent the flat to you with the intention of earning an income from the rental, the landlord then also bears the burden of proof that according to the purpose objectively pursued by him, this is only a legal transaction to be assigned to his private legal sphere.
And this does not even require a concrete intention of the landlord to make a profit, but it is already sufficient that he offers his property for rent on a planned and permanent basis, which is already supported here by the fact that the landlord uses the rental platform Wunderflats.con.
See BGH judgement of 29.06.2006