§ 12a ApoG: Expert pharmacist should run the "home pharmacy" free of charge and receive a financial compensation for the unanswered effort

a) The home care contract, which closes the pharmacist with the home carrier according to § 12a Abs. 1 ApoG, is its legal nature, subject to official approval, under private law, acting in favor of the resident framework contract, the central care of the residents by the in the Contract certain pharmacy legally legalized.
b) The statutory provision in § 12a ApoG pursues a dual objective. On the one hand, the legislator wants to provide the homes within the meaning of § 1 HeimG a knowledgeable pharmacist who leads the "home pharmacy" free of charge. On the other hand, the pharmacist should receive a (potential) financial compensation for the unpaid expenditure in such a way that he supplies the residents with medicines within the framework of a long-term contractual relationship.
c) A contracting party that terminates the contractual relationship by failing to observe an agreed period of notice violates its obligation to take due consideration under § 241 para. 2 BGB and commits a breach of duty within the meaning of § 280 para. 1 sentence 1 BGB (following BGH, judgment of 16 January 2009 - V ZR 133 / 08, NJW 2009, 1262).

BGH JUDGMENT III ZR 446 / 15 of the 14. July 2016

BGB § 280 Abs.1; ApoG § 12a Abs. 1

BGH, Urteil vom 14. Juli 2016 – III ZR 446/15 – OLG Celle, LG Hannover

The III. Civil Senate of the Federal Court has to the hearing of the 14. July 2016 by the chairman judge Dr. Herrmann and the judges Tombrink, dr. Remmert and Reiter and the judge Pohl
recognized for right:
On the appeal of the plaintiff is the judgment of the 4. Civil Senate of the Higher Regional Court Celle of the 11. November 2015 lifted.
The appeal of the defendant against the judgment of the 7. Chamber of Commercial Affairs of the Hanover Regional Court of the 24. March 2015 is rejected.
The defendant must bear the costs of the appeals
By rights
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The plaintiff claims the defendant for damages for lost profits.
The applicant owns a public pharmacy in R. The defendant is the bearer of the in the same place situated nursing home "Haus H.". The plaintiff, which supplied the home with drugs and pharmacy-only medical devices since the year 1995, closed under the 27. March 2003 with the then Heimsträger a "contract to ensure the proper care of the residents of a home in the sense of § 1 of the Home Act" (hereinafter: home care contract or utility contract). This was a "model contract" according to § 12a Pharmacy Act (ApoG), the district government H. on 9. July 2003 approved. By agreement of the 1. February 2008 entered the defendant as a new home carrier in the contract.
The home care contract includes the following rules:
The parties conclude the following contract with the aim of ensuring a qualified supply of home residents with medicines and pharmacy-authorized medical devices as well as individual care. It is agreed that this contract does not restrict the right of home residents to the free choice of the pharmacy. ... Also it remains up to the home carrier to conclude further contracts of the same content with other public pharmacies. ...
§ 1
Ensuring the supply of the residents
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with medicines and pharmacy-only medical devices
(1) The pharmacist undertakes to supply the residents of the home with medicines and pharmacy-only medical products upon request, ...
(2) Ensuring homecare supplies of medicines and medical device-based medical devices includes, in addition to supplying, advising, and manufacturing, monitoring of supplies in the home in accordance with regulatory, regulatory, and subsequent agreements.
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§ 3
Duties of the home wearer
(1) The homecare provider ensures that the pharmacist has the right to enter the home to fulfill his or her legal and contractual obligations in consultation with the home office. He declares to work with the pharmacist and to assist him in the fulfillment of his duties.
§ 4
(1) The pharmacist is obligated to immediately supply all orders and orders in the sense of § 1 paragraph 1 which have been forwarded to him by the home. ...
(2) …
(3) If the home is provided by more than one public pharmacy, the provisions of an appendix to this contract shall apply to delimit the areas of responsibility of the participating pharmacies.
§ 6
Monitoring the drugs and
pharmacy-only medical products in the home
(1) The pharmacist verifies the proper habitation-based retention of the homeowners' supplies of medicines and pharmacy-only medical devices he delivers. The home carrier ensures that the pharmacist can fulfill this duty.
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§ 8
advisory tasks
(1) The pharmacist performs the following advisory tasks as part of the provisioning mandate:
1. Informing and advising home residents and the person responsible for the administration or use of the delivered products, as far as information and advice is required for the safety of the home residents or employees of the home,
(2) If the home is provided by more than one pharmacy, the provisions of the appendix to this contract shall apply to the delineation of the areas of responsibility of the apotheks involved.
(3) …
§ 10
Information requirements
(1) The pharmacist is obliged to inform the home carrier about circumstances that may affect the proper performance of the tasks resulting from this contract.
(2) The home carrier informs the pharmacist immediately if he signs contracts for the same item with other pharmacies.
§ 12
Contract duration and termination
(1) This contract is starting from the 27. Aug. 2013 closed for an indefinite period.
(2) The notice period is six months to the end of the quarter.
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(3) The right to terminate without notice for cause remains unaffected. "
In the year 2013, the defendant requested the plaintiff to draw up an offer, including the supply of medicinal products, including a free copy (repackaging of finished medicinal products for certain times of taking the patient into a non-reusable container, § 1a Abs. 5 der Apothekebetriebsordnung) should include. By letter from the 30. Sep-tember 2013 informed the plaintiff of the defendant that it could not make an offer for the blistering, as the resulting additional work exceeded its per- sonal resources. The defendant then canceled the home care contract by letter from the 3. December 2013 to 31. December 2013 and held to the notice also after the plaintiff with lawyer-letter from the 19. December 2013 had pointed out that the six-month contractual notice until the 30. June 2014 end. To the 1. Ja-nuar 2014 entered into a health care contract with another pharmacy, which subsequently supplied homeowners with medicines and medical device-based medical devices.
By means of the claim, the plaintiff last asserted - after deducting saved office costs - the loss of profits in the amount of 15.836,45 € plus interest. In doing so, it relied on the average value of the gross profits generated in each case in the first six months of the years 2011 to 2013 from the revenues of the home residents.
The district court has ordered the defendant to pay 13.700 € plus interest. On the appeal of the defendant, the Higher Regional Court dismissed the claim in its entirety. In its appeal approved by the Court of Appeal, the plaintiff seeks the restoration of the first-instance judgment.
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The admissible revision of the plaintiff is successful. It leads to the annulment of the judgment under appeal and to the rejection of the defendant's appeal.
The Court of Appeals, the decision of which is published in A & R 2015, 278, essentially stated as follows:
The plaintiff has against the defendant no claim to compensation according to § 280 para. 1 BGB. It could be left open whether the notice period laid down in § 12 para. 2 of the home care contract applies to both contracting parties or for which the defendant has had a reason for termination without notice. In any event, a claim for damages by the applicant is in principle grounded from the point of view of lawful alternative behavior. From wording and systematics of the contractual provisions, in particular from the preamble and the duty to inform according to § 10 para. 2 of the supply contract, it emerges that the defendant was entitled without adhering to the agreed period of notice, subsequently another pharmacy with completely to commission the services which the applicant had previously provided. The meaning and purpose of health care contracts within the meaning of § 12a ApoG, which exclusively serve to ensure the supply of home health care with pharmaceuticals and medical device-approved medical devices, also support this conclusion. The subject of the protection of § 12a ApoG alone are the residents or - indirectly - the home itself, but not the pharmacy. This sense and purpose serve also in § 12 Abs. 2 of the
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Supply contract specific notice period. This should just prevent that a home in the sense of § 1 of the Home Act (HeimG) "from one day to the other" without supply pharmacy was there. Neither § 12a ApoG nor the contractually regulated period of notice served the interests of the respective pharmacy to be able to continue providing home care at the current level. Accordingly, the existing contract pharmacy after participation of another pharmacy also no relevant supply area ver remain, especially since it was unclear how the range of the still permissible shift of the current scope of benefits to another pharmacy should be differentiated. In addition to the replacement of the alleged loss of profit, the consideration that the owner of a pharmacy should not trust that the delivery scope existing at the time of the conclusion of the contract will remain valid throughout the contract period is in itself a valid argument.
These statements do not stand up to legal review.
The plaintiff is entitled to claim against the defendant a claim under § 280 para. 1 in conjunction with § 252 BGB for the loss of lost profits.
1. The lower courts have correctly assumed that on the 27. March 2003 established contractual relationship based on the agreement of 1. February 2008 was continued by the parties to the dispute. This was a so-called home care contract within the meaning of § 12a Abs. 1 ApoG, on the basis of which the residents of the nursing home were provided with medicines and pharmacy-only medical devices.
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a) The home care contract, which the pharmacist concludes with the home carrier, is, in its legal nature, an under- licensing, private-law framework contract for the benefit of the resident, providing centralized care to the resident by the pharmacy specified in the contract legalized by public law (see Kasper in Rixen / Krämer, ApoG, § 12a No. 5, 7, 10, Kieser in Saalfrank, Handbook of Medical and Health Law, 5, Update Delivery 2015, § 11 Note 366, Wesser in Kieser / Wesser / Saalfrank, Pharmacists Act [as of: 1, February 2015], § 12a No. 47 and No. 48 ff on the question of classification as a public-law or mixed agreement). The residents are not contracting parties to the supply contract. These are only in the course of the specific delivery of medication a contractual relationship (sales contract) justified, which is in turn legally surrendered by public law residents in part, governed by public law (Kieser op. Cit., 412; Wesser, loc. Cit. 44).
b) The home care contract is regularly designed as a two-sided contract between the public pharmacy and home carrier (Laskowski, A & R 2015, 281, 283). While the pharmacist ensures the proper supply of pharmaceuticals (§ 12a para. 1 sentence 3 No. 2 ApoG, in particular § 1, § 4 para. 1, § 6 para. 1 of the supply contract) as well as information and advice obligations to the resident and takes over the employees of the home (§ 12a para. 1 sentence 3 No. 3 ApoG; § 8 para. 1 of the supply contract), makes the home carrier in particular the obligation to the Apo-theker or the pharmaceutical personnel commissioned by him a right of access to the home (§ 12a para 1 sentence 3 No. 2 ApoG; § 3 para 1 of the supply contract) and to ensure that the medicines are kept properly and the employees working in the care at least
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5 No. 2 No. 11 of the Lower Saxony Act on Supporting Living Arrangements of the 29, June 2011, Nds.GVBl. 2011, 196; s. also § 11 Abs. 1 no. 10 HeimG; Kasper op. Cit. 4; Laskowski supra).
c) Although the fulfillment of the additional tasks according to § 12a para. 1 sentence 3 No. 2, 3 ApoG for the pharmacist, who is subject to a contract obligation according to § 12a para. 1 sentence 1 ApoG, signifies a not inconsiderable additional expenditure, the law does not before that he receives a remuneration from the home carrier for this (state court for health professions at the OVG Rhineland-Palatinate, judgment of the 11 September 2009 - LBGH A 10322 / 09, BeckRS 2009, 39439 = juris Rn 28; Kieser aoO Rn. 373; Wesser, loc. Cit. 27). However, the additional expense of the pharmacist is offset by a (lucrative) financial equalization in that the pharmacist is given privileged access to (potential) customers to whom he supplies drugs and to whom a (sales-increasing) relationship of trust is gradually formed 28, 30, 33 f; VG Darmstadt, judgment of the 2 March 2011 - 4 K 1759 / 09.DA, BeckRS 2012, 52199 = juris Rn 26; Kasper aoO Rn. 9 ). Seen in this way, the home care contract constitutes the legal access, as it were the "key" of the supply pharmacy to a permanent supply of the home residents (regional court for health professions, cited above, item 28, Wesser, supra, 28).
2. The defendant's breach of duty within the meaning of § 280 para. 1 sentence 1 BGB can be seen as the termination of the 3. December 2013 in breach of the agreed notice period of six months to 31. December 2013 and on the basis of which the plaintiff since the 1. Ja-nuar 2014 excluded from the care of the resident. A contract
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Party, which - as the defendant - exercising a design right in disregard of the contractually agreed, violates their obligation to consider in accordance with § 241 para. 2 BGB. The plaintiff was entitled to expect the defendant to observe the agreed notice period and not to commit a breach of contract (see BGH, judgment of the 16 January 2009 - V ZR 133 / 08, NJW 2009, 1262, 16 f; Palandt / Grüne-berg , BGB, 75, ed., § 280 Rn. 26). The fact that the defendant could have granted a right to termination without notice for an important reason (§§ 314, 626 BGB) is neither forwarded nor otherwise apparent.
Contrary to the defendant's opinion, § 12 para. 2 of the home care contract is not to be interpreted as meaning that the regulated six-month period of notice only had to be observed by the plaintiff and the defendant therefore made the contract a 31. December 2013 effective termination. Rather, the notice period refers to both parties.
a) The Senate may itself interpret the home supply contract used by the defendant, which is preformed as a "model contract" for a large number of contracts and contains general terms and conditions within the meaning of § 305 para. 1 sentence 1 BGB. The interpretation shall be based on the objective content and typical meaning of the pre-formulated contractual conditions, as understood by reasonable and fair contractors, taking into account the interests of the regular public, based on the understanding of the average contractor see Senate, Judgment of the 9 June 2011 - III ZR 157 / 10, WM 2011, 1678 Rn 33, BGH, Judgment of the 21 April 2015 - XI ZR 200 / 14, BGHZ 205, 84 Rn. 20, each mwN).
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b) According to § 12 para. 2 of the home care contract, the notice period is six months to the end of the quarter. The terms of the contract contain no restriction that this period only applies to the plaintiff and a "free annulment" of the defendant should be possible at any time. On the other hand, it is supported by the fact that the generally formulated notice of termination of a bilateral contract applies equally to both parties. An exception to this rule, namely that an agreed notice period should, exceptionally, only limit the right of termination of a contracting party, should therefore have been regulated positively (Laskowski, loc. Cit. 282).
c) Apart from the fact that the terms of the contract for a proper termination of the defendant without observing a notice period gives nothing, also the interests of the fact that the six-month notice period was observed by both parties. By agreeing to a mutual notice period of six months, it was ensured on the one hand that, if the plaintiff canceled the home care contract, the central supply of medicines to the residents would not end overnight, possibly endangering the resident (see Wesser, cited above, item 86, which therefore proposes that a deadline be agreed even in the event of extraordinary termination). On the other hand, it has to be taken into account that the owner of the "home pharmacy" assumes additional services associated with a considerable additional expenditure by concluding the supply contract, as stated above. Accordingly, in the event of a change in the scope of supply until the end of delivery, he has a legitimate interest in being able to adapt to the changed situation within a reasonable transitional period and to make the necessary arrangements, for example, aligning personnel planning with the need for manpower - if necessary,
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observance of contractual employment notice periods - adapt (Laskowski loc. cit.). An interpretation that the period of notice of § 12 para. 2 of the supply contract was only one-sided in favor of the defendant is, after all, remote. Such a clause would disadvantage the pharmacist unfairly in the sense of § 307 Abs. 1 sentence 1 BGB.
3. The fault of the defendant, which was suspected in any case pursuant to § 280 para. 1 sentence 2 BGB, results from the fact that it deliberately disregarded the agreed six-month notice period.
4. The breach of duty by the defendant has caused the plaintiff to pay compensation. According to § 252 sentence 1 BGB the damage to be compensated also includes the lost profit.
a) The view of the Court of Appeal that the alleged claim for damages should be refused in any case from the point of view of the lawful alternative behavior is influenced by legal errors. Without observing the agreed period of notice and without the existence of an important reason for dismissal, the defendant was not entitled to unilaterally depart from the home care contract by completely entrusting another pharmacy with the services previously provided by the plaintiff.
aa) Neither the preamble nor the obligation to provide information according to § 10 para. 2 of the contract give the home carrier the opportunity to unilaterally exchange the previous contracting partner.
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(1) Insofar as the preamble allows the home carrier to conclude "other contracts of the same content" with other public pharmacies, only the requirements of § 12a para. 1 sentence 3 No. 4, 5 ApoG are taken into account. According to § 12a Abs. 1 sentence 2 ApoG required by public law approval of the home care contract may only be issued if the home care contract does not restrict the free choice of pharmacies home residents and no exclusivity bond in favor of a pharmacy. The areas of responsibility of several pharmacies involved in the care must be clearly defined (§ 12a para. 1 sentence 3 No. 5 ApoG). The preamble therefore merely expresses that several supply contracts can be executed in parallel (see also Laskowski, loc. Cit., P. 282). However, it does not grant the home carrier the power to unilaterally terminate an existing supply contract, irrespective of termination, and to replace it with a new contract with another pharmacy.
(2) The defendant's obligation to inform the pharmacist immediately about the conclusion of further care contracts (§ 10 para. 2 of the contract) also does not imply a unilateral right to replace the previous supply pharmacy. The immediate obligation of the home organizer to provide information is the result of the obligation arising from § 241 para. 2 BGB to take into account the rights and interests of the other party. The regulation is therefore intended to help the pharmacist, who until now has been able to provide home care, to adjust in good time to the anticipated changed supply situation with his company (Laskowski loc. Cit.). However, this does not say anything about the fact that the previous "home pharmacy" can be replaced by another without observing deadlines. In particular, the defendant's power to conclude further supply contracts with other pharmacies "for the same purpose" does not mean that such contracts can be concluded without an agreement.
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parties or a (partial) termination of the previous supply contract.
bb) The fact that the defendant was not allowed to reduce the plaintiff's service program to "zero" without an orderly termination is further confirmed by the provisions of § 4 para. 3 and § 8 para. 2 of the contract. For these assume that the home is "supplied" by more than one public pharmacy and refer to the definition of the areas of responsibility of the "participating" pharmacies on the "agreed terms". This makes it clear that the existing contract pharmacy must remain even after participation of another pharmacy in the supply of home residents a still relevant area of ​​care and it is inadmissible to exclude the previous contract pharmacy in fact from the supply of homebuyers by her no area of ​​responsibility or only a completely insignificant one is assigned (Wesser, loc. cit. 91). The respective areas of responsibility are to be determined first and foremost by mutual agreement. If the former authorized pharmacy is to be unilaterally taken on a part of the supply area assigned to it by contract, a partial termination is always required (see Wesser, loc. Cit., 88).
cc) The court of appeal has shortened the legal purpose also wrongly assumed that protected object of § 12a para. 1 ApoG alone are the residents (or indirectly the home itself) and the regulated in § 12 paragraph 2 of the contract notice period should prevent a nursing home from being "from one day to the next" without a supply pharmacy.
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(1) The case law of the Federal Court of Justice recognizes that the obligation to pay damages is limited by the protective purpose of the standard. An obligation to pay compensation only exists if the damage claimed falls under the protective purpose of the infringed standard according to the nature and mode of production. A liability exists only for those equivalent and adequate damage consequences, which originate from the range of the dangers, to whose application the injured norm was issued or the injured contractual obligation was taken over. The alleged harm must be related to the threat posed by the hazard; an "external", as it were, "accidental" connection is not enough. In that regard, a judgmental consideration is required. The injured person should only be attributed to such consequences that are to be prevented by the protective purpose of the standard or contractual obligation. Accordingly, the meaning and scope of the infringed standard or of the infringed contractual or pre-contractual obligation must be examined in order to clarify whether the alleged harm should be prevented by the injured provision (currently only BGH, judgments of the 26 2013 - VI ZR 116 / 12, NJW 2013, 1679 Rn 12, 20 May 2014 - VI ZR 381 / 13, BGHZ 201, 263 Rn.10 and 7 July 2015 - VI ZR 372 / 14, NJW-RR 2015, 1144 Rn. 26, each with numeric wN). This requirement is met in case of dispute.
(2) § 12a ApoG has been inserted by Art. 1 No. 2 of the Act Amending the Pharmacy Act of the 21. August 2002 (BGBl. I S. 3352) and resigned after a prolonged transitional period on the 27. August 2003 in force (Article 5 of the Law). The legislature looked after the introduction of the 2. Nursing care needs to be addressed because it has transformed a number of hospital beds into inpatient care beds. These beds now fall into the area of ​​responsibility of private nursing homes, so that for them one
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Supply by a hospital pharmacy according to § 14 ApoG no longer came into consideration (draft of the Federal Council of a law for the change of the apothecary law, BT pressure 14 / 756 S. 1, 5, professional court for Heilberufe with the OVG Rhineland-Palatinate, judgment from 11 - September 2009 - LBGH A 10322 / 09, BeckRS 2009, 39439 = juris Rn. 26). With the inclusion of § 12a ApoG, the primary goal should be to increase drug safety in the homes. At the same time, a more cost-effective supply of medicines was sought (Report of the Committee on Health on the draft of the Federal Council of a law amending the Pharmacy Act, BT Printing 14 / 756 S. 5 and draft Federal Council, supra, 1). The intended improvements - at least in the area of ​​the supply of medicines - should be as cost-neutral as possible for health insurance funds and nursing homes. This should, according to the legislature, be achieved by the § 12a para. 1 ApoG the institutions of homes in the sense of § 1 HeimG granted the opportunity te, to provide their residents with medicines and pharmacy medical devices with the owner of a public pharmacy conclude a supply contract, and at the same time obliged the pharmacist to conclude such a contract (obligation to contract, § 12a para. 1 sentence 1 ApoG). Although this represents a considerable additional expense for the pharmacist, the law does not provide for any additional remuneration (Regional Court for Health Professions, loc. Cit. 27 f; Wesser, loc. Cit. 151). Rather, the legislature has assumed that the care pharmacist is typically "the" supplier of the home and its inhabitants, so that the supply by the Apo-theker financial compensation for the additional control and counseling obligations represent (Landesberufsgericht für Heilberufe aaO Rn 28, 33 f, see also VG Darmstadt, judgment of the 2, March 2011 - 4 K 1759 / 09.DA, BeckRS 2012, 52199 = juris Rn. 26).
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(3) The legal regulation in § 12a ApoG pursues thus a double target direction: On the one hand the legislator wants to provide the homes within the meaning of § 1 HeimG a knowledgeable pharmacist who leads the "Heimapothe-ke" free of charge and advises the employees of the home , On the other hand, the pharmacist should receive a (potential) financial compensation for the additional and non-compensated expenditure in such a way that he supplies the resident with medication in the context of a long-term contractual relationship and establishes a (sales-increasing) relationship of trust , which results from the close and frequent contact (Landes-Berufsgericht für Heilberufe op. cit., 30, Laskowski, loc. cit., p. 283).
After all, § 12a ApoG does not just protect the home residents and their bearers. Rather, the standard also takes into account the financial compensation of the pharmacist for the extra effort that has to be made and wants to give apo-theker the concrete opportunity to gain additional profit by increasing the sales of medicines. Accordingly, the agreement of a longer (in this case six months) period of notice serves not only to ensure the safety of medicines for the benefit of the resident, but also the legitimate interests of the pharmacist. In addition to supplies of pharmaceuticals, this includes numerous contractual and legal obligations under the supply contract, the fulfillment of which may require financially complex dispositions. By agreeing to a longer period of notice, the protection needs of the pharmacist's economic interests are also adequately taken into account.
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b) According to § 252 sentence 2 BGB in conjunction with § 287 para. 1 ZPO, the appraisal of damage by the district court is not objectionable. The Court of Appeals has not made any differing findings. The defendant has not made any objections.
aa) Based on the gross profit achieved in the first six months of 2011 to 2013 and taking into account a rather declining trend, the district court estimated the profit lost in the first half of 2014 to be 15.000 €. Of this, it deducted 1.300 € for office expenses saved by way of the benefit compensation. Thus, there were sufficient connecting facts that allowed an assessment of how things would have evolved. It should be borne in mind, however, that excessive demands may not be made on the loan of such attachments. An estimate according to § 287 para. 1 ZPO is only excluded if, for lack of tangible evidence, a basis for the judgment is not to win and the judicial discretion would be completely "in the air" (eg BGH, judgment of the 21 January 2016 - I ZR 90 / 14, BeckRS 2016, 10542 Rn. 26 mwN).
bb) As far as the defendant thinks that the plaintiff could not "under normative viewpoints" her profit lost on the basis of one until the 30. June 2014 continued exclusive supply, otherwise the prohibition of the inventory guarantee would be bypassed, the Senate does not follow.
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First, according to the findings of the previous instance, which were not challenged, the new supply pharmacy should not replace the plaintiff but replace it, so that it was not possible to delimit the areas of responsibility according to § 12a para. 1 sentence 3 No. 5 ApoG. On the other hand, the - generally permissible (§ 12a para. 1 sentence 3 No. 5 ApoG) - transfer of part of the care of the resident to another pharmacy requires that the agreement of the parties on the demarcation of jurisdiction is achieved or a partial termination the previous "home pharmacy" he follows (Wesser, loc. cit. 88). For that for the period of 1. January to 30. Nothing could be said before 2014 had reached an agreement between the parties and another pharmacist. For a (hypothetical) partial termination of the defendant to the plaintiff, the period of § 12 para. 2 of the supply contract would also have applied, so that such termination also not before expiration of the 30. June 2014 would have been effective.
After the usual course of events, the plaintiff would have supplied the home until the expiry of the agreed period of notice - as in the past - on its own. The district court has therefore rightly based this course of its damage assessment.
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The judgment under appeal must therefore be set aside (§ 562 para. 1 ZPO). The case is ripe for the final decision, so that the Senate can reject the appeal of the defendant against the judgment of the district court (§ 563 para. 3 ZPO).
Herrmann Tombrink Remmert
Reiter Pohl
lower courts:
LG Hannover, decision of 24.03.2015 - 32 O 24 / 14 -
OLG Celle, decision of 11.11.2015 - 4 U 61 / 15 -

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