A treatment slot is reserved, the therapist is scheduled, the room is ready – and the patient does not show up. In physiotherapy, occupational therapy, speech therapy or psychotherapy practices, and in longer dental sessions, such a gap can rarely be filled at short notice. The question of a missed appointment fee comes up quickly. The legal answer, however, does not start with the missed appointment but earlier: with what the practice and the patient agreed before the appointment was set. The German Civil Code (Bürgerliches Gesetzbuch, BGB) gives the practice a route through the treatment contract, and the Federal Court of Justice confirmed it in 2022 – in a ruling that also shows where such a claim can fail. This article explains what lies behind Section 615 BGB, why a notice on the website is not yet an agreement, and how the cancellation policy, a booking form with a checkbox and the record of consent work together. How salons, driving schools and other appointment-based businesses word their cancellation terms is covered in the article on appointment requests for service businesses; this one is about the practice and the treatment contract.
Why an empty slot costs money
Many practices work by appointment only: each patient gets a fixed time that is held for them alone. This applies above all where a treatment has a set length and a therapist works one to one.
If such an appointment falls through without the practice learning about it in time, the slot stays empty. Salaries and rent keep running, and another patient waiting for an appointment could have taken it. The Federal Court of Justice expressly recognized this way of organizing a practice in its ruling of May 12, 2022. Because the occupational therapy practice that brought the claim could not reassign canceled appointments in less than 24 hours, the court concluded that it gives its patients exclusive appointments rather than multiple bookings – “keine Mehrfachtermine, sondern Exklusivtermine” (Federal Court of Justice, III ZR 78/21). Their binding nature, the court said, is in the interest not only of the practice but also of the patients, who are spared longer waiting times (Federal Court of Justice, III ZR 78/21). This is exactly the reasoning that belongs on the website later: whoever explains a cancellation policy should first explain why the time is reserved. Patients see it from the other side. The consumer advice center Verbraucherzentrale stresses that courts assess missed appointment fees differently depending on the facts. In its view, a practice only has a claim once the missed appointment has caused a loss of earnings – that is, when it could not treat anyone else in that time (Verbraucherzentrale). For the website, this calls for a measured tone: the policy should prevent no-shows and set expectations, not deter patients who already find it hard enough to organize their treatment. Which other questions reach the front desk of a therapy practice is shown in the article on the physiotherapy practice website with prescriptions and copays.
The legal basis: Section 615 via the treatment contract
The treatment contract is part of the BGB. Under Section 630a(1) BGB it obliges the provider to deliver the promised treatment and the patient to pay the agreed fee, unless a third party is obliged to pay (Section 630a BGB).
Section 630b BGB builds the bridge to the service contract: the rules on service relationships apply to the treatment relationship unless the subtitle on treatment contracts provides otherwise (Section 630b BGB). This brings in Section 615 BGB, payment in the event of default of acceptance. Its first sentence says that if the party entitled to the services is in default of acceptance, the party obliged to perform may demand the agreed pay for the services not performed as a result, without having to make them up later (Section 615 BGB). Applied to a practice: if a patient does not come to the agreed appointment although the practice was able to treat, the patient may owe the fee for that time – provided the conditions for default of acceptance are met – and the practice does not have to make up the treatment later for free. The second sentence decides the amount and is often overlooked. The practice must credit the value of what it saves because the service did not take place, or what it earns by using its services elsewhere or maliciously fails to earn (Section 615 BGB). Whoever reassigns the slot at short notice to another patient has no loss to that extent. Whoever saves consumables deducts them. And the wording “maliciously fails to earn” shows that a practice may not deliberately pass up an obvious chance to rebook. That is why the graphic above says “minus the savings”: a missed appointment fee is not a penalty for staying away but payment for reserved time that nobody else could use.
Scroll table sideways
| Provision | What it governs | What it means for the website |
|---|---|---|
| Section 630a BGB | Treatment contract: treatment in return for the agreed fee | Describe services with their length so it is clear which time is reserved |
| Section 630b BGB | Service contract law applies to the treatment relationship | Explain clearly why appointments are given out as binding |
| Section 615 BGB | Pay in the event of default of acceptance, crediting of savings | Present the amount as pay minus savings, not as a penalty |
| Section 296 BGB | If a time is fixed by the calendar, the practice does not need to offer performance | Confirm appointments with date and time |
| Section 627 BGB | Termination without good cause for higher-level services based on special trust | Note that treatment can be ended at any time |
| Section 305 BGB | Inclusion of standard business terms | Show the policy before the appointment and have it confirmed |
| Section 309 No. 5 BGB | Limits on liquidated damages, proof of a lower loss | Expressly allow proof of a lower loss |
What the Federal Court of Justice decided in 2022
The case practices cite today was lost by the practice.
An occupational therapy practice had written in its registration form, under “Important information”, that appointments that cannot be kept must be canceled at least 24 hours in advance: “Können vereinbarte Termine nicht eingehalten werden, müssen diese mindestens 24 Stunden vorher abgesagt werden.” (Federal Court of Justice, III ZR 78/21) Otherwise, a flat fee would be billed privately, “unabhängig von einer Begründung” – regardless of the reason. A mother had signed the form for her children. On the morning of the appointments in March 2020, she canceled by phone because another child was at home with a fever. The practice billed a fee of 25 euros for each of the two canceled appointments (Federal Court of Justice, III ZR 78/21). The local court and the regional court ruled in its favor; the Federal Court of Justice dismissed the claim. The reason was the coronavirus protection ordinance of 22 March 2020: occupational therapy was only permitted with a doctor’s certificate of medical necessity and strict protective measures, and these requirements were not met on the day of the appointments (Federal Court of Justice, III ZR 78/21). Whoever cannot perform does not put the other side in default of acceptance: under Section 297 BGB, the creditor is not in default if the debtor is unable to perform at the set time (Section 297 BGB).
For practices, the statements the court made along the way matter more. First, Section 615 BGB applies to treatment contracts via Section 630b BGB: “Die Vorschrift des § 615 BGB ist gemäß § 630b BGB auf Behandlungsverträge im Sinne des § 630a BGB anwendbar.” (Federal Court of Justice, III ZR 78/21) Second, according to the headnote, a possible claim for payment under Section 615 BGB is also directed against patients covered by statutory health insurance (Federal Court of Justice, III ZR 78/21). The insurer does not pay for the wasted waiting time because the practice provided no service to the insured person; a missed appointment fee is therefore billed privately. Just as important is what remained undecided. Because default of acceptance was already missing, the court did not examine whether the clause would survive a review of standard terms: it could remain open, it said, whether the clause would withstand a content review under Sections 307 et seq. BGB (Federal Court of Justice, III ZR 78/21). Reading the ruling as a free pass for any cancellation clause reads more into it than it contains. It is more of a blueprint: a binding appointment, a recognizable reservation, notice before the agreement and a practice that is actually able to treat at the appointed time.
When an appointment is binding
Section 615 BGB only applies if the patient is in default of acceptance. Normally the debtor has to offer performance for that.
Section 296 BGB makes this offer unnecessary if a time fixed by the calendar has been set for the creditor’s action (Section 296 BGB). In everyday practice this means: if the appointment is agreed so that the patient is to appear at exactly that time, the practice does not have to check again whether the patient is coming. Whether an appointment is fixed by the calendar in this sense depends on the individual case; according to the Federal Court of Justice, a schematic approach is ruled out. What counts are all the circumstances of the case, in particular the interests of the parties and the way the provider organizes appointments, as well as whether patients can recognize that organization (Federal Court of Justice, III ZR 78/21). In the case decided, the mother could see that the time agreed to the minute was reserved for her children alone – partly because the notice of the cancellation deadline and the flat fee in the registration form made clear that the appointments were not meant to be mere non-binding arrangements (Federal Court of Justice, III ZR 78/21). An open consultation hour with a waiting room is the opposite model: whoever gives an approximate time there does not assign an exclusive treatment slot. For the website, this creates a task that at first has little to do with law – it has to make the practice’s organization recognizable. That includes the usual length of each treatment on the services page, a sentence saying that appointments are held as a fixed treatment time for exactly one patient, a clear separation of open consultation hours and fixed appointments, and an appointment confirmation with date and time.
A notice is not yet an agreement
This is where a common mistake lies. An “Appointments and cancellations” page informs – but nothing has been agreed yet.
A cancellation policy that the practice pre-formulates in the same way for all patients is, as a rule, a standard business term; that is also how the Federal Court of Justice classified the clause in the registration form (Federal Court of Justice, III ZR 78/21). For such terms to become part of the contract, Section 305(2) BGB sets three conditions: when the contract is concluded, the practice must expressly point them out, give the patient the opportunity to take note of their content in a reasonable way, and the patient must agree to them (Section 305 BGB). The law also requires that a physical disability recognizable to the practice be taken into account appropriately – one more reason to include the policy as readable text rather than as an image or a scanned form. The timing is decisive: before the appointment is bindingly agreed. A policy the patient reads for the first time in the appointment confirmation or on the invoice comes too late. The agreement is therefore made where the appointment is made – in the booking form with a checkbox, at registration in the practice with a signature, or on the phone with an express notice that the written confirmation repeats.
Scroll table sideways
| Place | What it does | What it does not do |
|---|---|---|
| “Appointments and cancellations” page | Explains policy, reasons and ways to cancel in detail, available at any time | Does not replace the patient’s consent |
| Booking form with checkbox | Notice and consent at the moment of the request, recorded in the request with its label | Does not turn a request into a confirmed appointment |
| Registration form at the practice | Signature under the policy, as in the Federal Court of Justice case | Reaches patients only at their first visit |
| Booking by phone | Personal notice of the policy | Hard to prove without written confirmation |
| Appointment confirmation by email | Repeats appointment, policy and ways to cancel | Comes too late if the policy appears there for the first time |
A separate page with standard terms is not mandatory for a practice website. XICflow creates the imprint and privacy policy before every publish if they are missing; whether your case requires further texts such as terms is your decision, and according to the documentation on publishing and domains “those pages are deliberately not forced” (XICflow documentation). If you run a terms page, include the cancellation policy there and, in short form, next to the form as well. Filing the policy only in a long document hides it, though – and under Section 305c BGB, terms so unusual that the other party need not expect them do not become part of the contract (Section 305c BGB). The policy therefore belongs where everyone sees it.
Wording the cancellation policy fairly
Whether a cancellation policy holds up depends on its wording.
Section 307(1) BGB declares provisions in standard business terms invalid if, contrary to good faith, they unreasonably disadvantage the other party, and adds that an unreasonable disadvantage may also arise from the provision not being clear and comprehensible (Section 307 BGB). A policy a patient understands on first reading is therefore not only friendlier but also legally sturdier. It answers the following questions without anyone having to ask.
Deadline with a reference point
Up to when an appointment can be canceled free of charge, measured from its start. In the Federal Court of Justice case it was 24 hours (Federal Court of Justice, III ZR 78/21); there is no statutory deadline. The practice chooses it based on how quickly it can rebook.
Ways to cancel around the clock
Phone during phone hours, plus email, an answering machine or a cancellation form for evenings and weekends. A deadline that cannot be met outside phone hours is hard to justify.
Amount that makes sense
The fee is based on the agreed pay for the reserved time, not on a round deterrent figure. The practice states the amount or the calculation in advance.
Deduct the savings
If the slot is rebooked or materials are not used, the claim goes down. Section 615, sentence 2 BGB requires this credit (Section 615 BGB), and the policy says so openly.
Allow an excuse
The patient can show that no loss or a lower loss occurred. For absences beyond the patient’s control, such as an accident or sudden illness, the policy offers a solution.
Ending treatment stays free
Anyone who wants to stop treatment can do so at any time. Section 627 BGB allows termination without good cause for higher-level services based on special trust (Section 627 BGB).
Absences beyond the patient’s control deserve special attention. Under the law, default of acceptance does not require fault; the appeal court in the Federal Court of Justice case therefore considered the lack of an excuse acceptable, because under the statutory rules default of acceptance arises regardless of fault – “verschuldensunabhängig” (Federal Court of Justice, III ZR 78/21). The Federal Court of Justice did not decide this question. Other courts have been stricter: the Verbraucherzentrale reports a 2005 ruling of the Berlin Regional Court that held a clause with a cancellation deadline of 24 hours and a missed appointment fee of 75 euros invalid – at least where the patient had no way to show that the absence was not their fault (Verbraucherzentrale). A practice that expressly exempts accidents, sudden illness or a family emergency takes the edge off this dispute. A starting point for the text on the website could look like this; it does not replace legal advice and should be reviewed by a lawyer before use:
Your appointment is reserved for you
We give out fixed treatment times that are held for you alone.
If you cannot keep an appointment, please cancel it by [deadline]
before it starts: by phone during phone hours, by email at any time
or through the cancellation form on this page.
If you cancel later or do not come, we may charge the agreed fee
for the reserved time. We deduct what we save as a result or earn
by giving the slot to someone else. You may show that we suffered
no loss or a lower loss.
In an emergency, after an accident or in case of sudden illness,
we do not charge anything. You can end your treatment at any time;
that is not a cancellation of an appointment.Section 309 No. 5: allow proof of a lower loss
Section 309 BGB lists clause prohibitions without the possibility of evaluation.
Number 5 concerns flat-rate damages: a flat rate is invalid if it exceeds the damage to be expected in the ordinary course of events, or if the other party is not expressly permitted to prove that no damage or loss in value occurred at all or that it is substantially lower than the flat rate (Section 309 BGB). Whether a missed appointment clause is a flat-rate damages clause in this sense at all has not been settled. The appeal court in the Federal Court of Justice case did not see it as one, but as a flat-rate version of the payment claim under Section 615 BGB, and therefore considered Section 309 No. 5(b) BGB not applicable (Federal Court of Justice, III ZR 78/21). The Federal Court of Justice did not confirm this but left the content review open altogether. For the practice, the consequence is still simple: an express sentence stating that the patient may prove a lower loss or no loss costs nothing. It removes a point of attack from the clause, however a court classifies it, and it matches the idea of Section 615, sentence 2 BGB, under which savings have to be credited anyway.
Do not word it as a contractual penalty
The booking form with a checkbox
On the website, the booking form is the place where notice and consent come together. In XICflow you set the label and field type of each field yourself in the “Form” block and decide which fields must be filled in.
According to the documentation on requests and team, “You can choose single-line text, email, phone, number, dropdown, multi-line text, checkbox and consent” (XICflow documentation). A checkbox that must be ticked suits the cancellation policy; it is kept separate from anything related to data protection, because agreeing to the cancellation policy is a contractual matter. The label has a double job. It appears in the form next to the tick box, and it shows up later in the request: “Extra fields later show up in the request under their own label, and in a separate column of the export,” as the documentation puts it. Checkboxes appear there with the value “Ja” or “Nein” – German for yes and no (XICflow documentation). A short, clear label such as “Cancellation policy read and accepted” turns the request into a readable record. The policy text itself sits directly above the form, and a link leads to the full page. Symptoms, findings and diagnoses do not belong in this form. Which fields a practice should ask for, and why free text about symptoms is the wrong approach, is explained in the article on the compliant medical practice website. By submitting the form, the patient requests an appointment; it is only agreed once the practice confirms it. The confirmation therefore repeats date, time, length and the cancellation policy in one sentence. That way form, confirmation and website fit together, and the patient reads the same policy everywhere. A booking form for a practice could, for example, have these fields:
- Name and phone as mandatory fields, email for the written confirmation
- Requested treatment as a dropdown from the service list, without free text about symptoms
- Preferred time as a dropdown, for example morning, afternoon or evening
- New or existing patient as a dropdown, because first appointments often take longer
- Cancellation policy read and accepted as a checkbox that must be ticked, with the policy text in a few sentences above it
- Message for organizational matters only, labeled with the note “please no details about symptoms”
A page for appointments and cancellations
Besides the form, the policy needs a fixed place where it can be read at leisure and to which the form, confirmation and registration form refer.
A separate “Appointments and cancellations” page or a clearly named section on the contact page is enough. It answers the questions that otherwise end up on the phone: How do I book an appointment? Until when can I cancel, and how? What happens if I cancel later, and what in an emergency? The page states the policy in the same words as the form, registration form and confirmation, together with the date from which it applies. For the services themselves, the price list block is a good fit: each entry has a title, text, price and an additional detail on the row, such as the length of the treatment, and matching entries can be grouped, as the documentation of the basic blocks shows. Practices that offer several kinds of service – individual treatment, group course, home visit – check the policy for each kind. A place in a running course follows different routines than a single appointment; how a course schedule and registration fit together on the website is described in the article on prevention courses in 2027. With XICflow, none of this needs a rebuild: form, text, price list and FAQ are available as blocks, and you create the page for the cancellation policy in the editor like any other page. Which blocks and features XICflow provides for this is shown on the services page.
Proof: what the practice keeps
If there is a dispute, the practice has to be able to show that the policy was agreed before the appointment.
What counts is the signed registration form, the appointment confirmation and – for requests made through the website – the entry with the ticked checkbox and its date of receipt. In XICflow, such an entry is not kept forever: “By default, requests are kept for 180 days”, after which they are deleted automatically and permanently (XICflow documentation). For a treatment that runs for months, this may be too short. The solution is the CSV export from the request list: it contains your custom fields in their own columns, including the column “Cancellation policy read and accepted” with the value “Ja”. If you transfer a new patient’s request into your own practice records, the note is where it will be looked for later. If the practice changes its policy, the new version has to be agreed just like the first; the checkbox label then names the version, for example with the month from which it applies, so the export shows which policy someone agreed to. How retention periods and deleting requests fit together is covered in the article on keeping or deleting requests.
Reminding often helps more than charging
A missed appointment fee can at most make up for a loss. It does not reliably prevent one, and it strains the relationship with patients who often stay in treatment for a long time.
The Verbraucherzentrale advises patients to cancel as early as possible and, for fixed appointments, in writing or by email so the cancellation can be proven (Verbraucherzentrale). A practice that offers exactly this route on its website makes it easy to do the right thing. Often more helpful than a fee are a reminder shortly before the appointment, a way to cancel without a phone queue and a waiting list from which freed slots are filled. A refilled gap is no longer a loss, and under Section 615, sentence 2 BGB it reduces the claim anyway. A cancellation policy that explains why the time is reserved, how to cancel and what applies in an emergency feels less like a threat and answers a common question at the front desk before it is asked. How confirmation and cancellation work with self-booking is shown in the article on online appointment booking; how a dental practice plans the busy weeks before the turn of the year is covered in the article on bonus booklet appointments at year end.
The roadmap for the practice website
- Clarify the organization: which services are given out as fixed, exclusive appointments, which as open consultation hours?
- Set a deadline that matches your ability to rebook, and set up ways to cancel outside phone hours
- Write the policy text: reason, deadline, ways to cancel, amount minus savings, exceptions, proof of a lower loss, right to terminate
- Have the text reviewed by a lawyer, especially the amount and the exceptions
- Publish the “Appointments and cancellations” page and link it in the footer
- Add the checkbox to the booking form, with the policy text directly above it
- Bring the registration form and appointment confirmation in line with the same wording
- Regularly back up requests with a confirmed policy via CSV export