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B2B and B2C sales in contract law

Companies that general terms and conditions (GTC) for their contracts with business partners or end consumers have to observe numerous criteria. Unlike other contractual agreements, general terms and conditions are not negotiated between the contracting parties. Rather, one of the contracting parties stipulates the GTC as an integral part of the contract. For this reason are subject to GTC are subject to strict protection . The legislator has laid down rules in the German Civil Code (BGB) that must be observed when using general terms and conditions.

• If the GTC are used vis-à-vis end consumers consumers, strict consumer protection applies.
• When using general terms and conditions vis-à-vis companies are not subject to such strict protective regulations.

Contract law rules at national level for the provision of digital content and digital services

Through the implementation of the Digital Content Directive 2019/770 new rules were introduced in national law for all consumer contracts. Regardless of the type of contract, these rules relate to the provision

• digital content such as software and e-books, as well as
• digital services such as video streaming and social networks.

The companies are obliged to defect-free performance free of defects. In the event of a defect in the digital product, consumers have, in addition to the right to subsequent performance the right to termination of the contract as well as the right to reduction . Subsequent performance refers to the rectification of the defect, for example by repairing the digital product or making it available again. Consumers can also assert claims for damages and reimbursement of expenses. The warranty period is a minimum period of two years.

Companies are also obliged to updates - i.e. function-preserving updates and security updates. The regulations apply both when consumers pay a price for digital products and when they provide personal data in addition to or instead of payment.

The new regulations apply in particular to

• Databases
• cloud services
• Platform services
• social media
• web applications
• Media downloads, such as e-books
• digital television services
• number-independent interpersonal communication services, such as email or messenger services
• physical data carriers that serve exclusively as carriers of digital content, such as DVDs, CDs, USB sticks and memory cards
• the provision of certain electronic files in the context of 3D printing of goods.

The new regulations also apply to so-called package contracts which include further contractual content in addition to the provision of digital products. These may, for example, relate to the provision of non-digital services. As a rule, however, the new regulations only apply to the digital part of the contract.

Furthermore, as the provider of a website, you always have special information obligations to be observed. It does not matter whether the website is only used for presentation purposes or whether an ordering system is integrated. Information must be provided about:

• the full first name and surname the provider and, if applicable, the company
• the postal address the provider's postal address, whereby a P.O. Box and e-mail address are not sufficient
• for legal entities such as a GmbH, UG (haftungsbeschränkt), AG, cooperative, association, the legal form of the company and the name of the authorized representative(s)
• the full first name and surname and the address the person responsible for the content of the journalistic-editorial offers
• the sales tax identification number (VAT ID number), if available
• details of the competent supervisory authority if the activity carried out requires official approval, such as in the brokerage and property development industry
• an e-mail address and an additional means of communication that enables the consumer to make contact quickly, such as telephone and fax numbers, Internet chats or electronic contact forms
• the competent commercial register partnership register, register of cooperatives or register of associations, including the register number, if registered
• with AG, KGaA or GmbH that are being wound up or liquidated, the information about this
• in the case of services provided in the exercise of a regulated profession, the indication of the professional chamber , the legal professional title and the state in which the professional title was awarded, as well as professional regulations and where these can be accessed
• Indication of the business identification number if available.

Offer in your webshop products for consumers in your online shop, further legal regulations apply that must be observed. You must provide information on your website about:

• the the essential characteristics of the goods or services
• the time and manner of the conclusion of the contract
• in the case of so-called continuing obligations, the the minimum term of the contract if this involves a permanent or regularly recurring service
• any delivery reservations or a reservation to provide a service of equivalent quality and price
• the total price of the goods or services, including all associated price components and all taxes paid via the entrepreneur or
• if no exact price can be given, the basis for calculating the price, which enables the consumer to check the price. verify the price enables
• in the case of forwarding goods, the exact amount of the shipping costs
• if applicable further taxes or costs which are not paid via the entrepreneur or invoiced by him or her, for example information about a paid program not distributed by the company, which is necessary to display the retrieved information
• the details with regard to payment and delivery or, in the case of a service, with regard to fulfillment
• the existence or non-existence and expiry of the right of right of withdrawal as well as the conditions, deadlines and procedures for exercising the right of withdrawal with the help of the withdrawal instructions and the model withdrawal form. In addition, this information must be provided to the consumer on a durable medium at the latest upon delivery of the goods. This can be done, for example, by e-mail in the order confirmation or in paper form with the delivery of the goods
• the specific additional costs the use of means of distance communication in connection with the initiation and processing of the contract, insofar as these exceed the usual costs,
• the period of validity limited offers
• the individual technical steps that lead to the conclusion of a contract
• whether the contract text is stored by the online retailer after conclusion of the contract and whether it is accessible to the customer
• the languages available for the conclusion of the contract
• if the online retailer has adopted codes of conduct about these and their electronic accessibility
• the possibility of online dispute resolution by means of a clickable link
• the willingness to participate or not to participate in a consumer arbitration provided that the trader employs at least 11 people.

The right place for the information is the order page . There, you must provide consumers with the information in a clear, understandable and highlighted manner. This is best achieved with the help of a structured ordering process and the use of

• general terms and conditions
• a cancellation policy and
• a withdrawal form .

Special rules - other off-premises sales

If a contract is concluded outside a store, for example on the doorstep or at the workplace, consumers are particularly exposed to the risk of being taken by surprise. For this reason, the law provides in these situations special protective provisions in these situations.

Before concluding a contract, you as a company have information obligations to fulfill. These include, among other things:

• the essential characteristics of the goods or services
• their identity and contact details
• the total price of the goods and services including all taxes and duties as well as any additional costs, such as freight, delivery or shipping costs
• the terms of payment, delivery and performance and, if applicable, the term of the contract and the terms of termination
• any existing right of revocation and, in particular, the withdrawal period and the legal consequences associated with the withdrawal.

In the case of contracts concluded outside of business premises, consumers generally have a right of withdrawal limited to 14 days. right of withdrawal (Section 312g (1) BGB). Withdrawal can be made informally, including verbally, by telephone or email.

Sale in a store

The information obligations also apply to stationary trade, i.e. purchases in a store. A statutory right of withdrawal does not exist here . Consumers have a right of withdrawal in the following cases:

• when the contract was concluded payment in installments agreed
• the purchase contract is linked to a credit agreement linked
• A financial aid was granted - for example in the case of a leasing contract with a purchase obligation or if a cell phone is sold more than EUR 200 cheaper with a contract than without.
• Items that belong together such as the volumes of an encyclopedia, are delivered gradually and should be paid for in installments.
• You will receive the regular delivery similar items, such as newspaper or magazine subscriptions.
• The contract, for example with a book club, provides for the regular purchase of goods. In these cases, however, the purchase price must be more than EUR 200 and be credited for more than 3 months.

Auxiliary and training services via contractual obligations

Through the Chambers of Industry and Commerce (IHKs) provide information throughout Germany, see Information and publications .

Types of contract for the supply of digital content

In the case of contracts for downloading, i.e. the download or downloading in real time, so-called streaming of digital content are regularly considered to be distance contracts . The provisions applicable to these contracts therefore apply in principle. In addition, the special provisions for contracts in electronic commerce apply.

However, there are some special features . These relate to the downloading and streaming of films, music files or other digital content on the Internet as well as the downloading of apps for smartphones and tablets.

In the case of distance contracts, consumers have the right to withdraw from the contract without giving reasons. As a rule, they have 14 days to do so. In the case of purchase of digital content, this period begins with the conclusion of the contract . However, if the company has not informed the consumer of the right of withdrawal, the period is extended by a further 12 months.

However, to ensure that digital content cannot simply be used and then revoked as often as desired, a special rule applies to streaming and downloads: The right of withdrawal expires as soon as the company has started to execute the contract . In the case of streaming portals, this means as soon as the stream begins and the consumer can access the content. When downloading digital content, the right of withdrawal expires as soon as the downloading process begins.

You must inform consumers about this special feature of the right of withdrawal in advance.

Liability for defects in digital products or services sold

A defect always exists if a product does not have the quality that was agreed. Or if it is not suitable for normal use. Digital goods can therefore also be defective. If this defect already existed at the time of delivery, consumers have so-called warranty rights are entitled to.

You are obliged to rectify defects in digital goods or provide buyers with flawless files. If you fail to do so, buyers have the right to reduce the purchase price or withdraw from the purchase contract.

Relevant information on late payments

If a contract is not fulfilled and the customer does not pay after the contract has been concluded, it is important for the creditor, the company, to put the debtor in default. The debtors are in default if they fail to pay in response to a reminder from the creditor. A reminder should be sent in writing by registered letter with acknowledgement of receipt to the debtor. The reminder should contain an explicit request for payment, preferably with a specific date by which payment must be made.

As soon as the debtor is in arrears, the creditor is entitled to demand payment, interest on arrears to demand default interest. If the debtor is a consumer, they may charge the debtor interest at a rate of 5 percentage points above the current prime rate of the European Central Bank.

The dunning procedure is, in addition to filing a lawsuit, a way of asserting a monetary claim with the help of the courts. As it is a so-called simplified procedure, the dunning procedure is of great practical importance. It makes it possible for anyone and everyone to go to court. The application for an order for payment must be submitted in writing to the competent district court using the officially prescribed application form. The application form is available in stationery shops. It is also possible to submit the court order for payment electronically electronically.

An alternative to the judicial dunning procedure is to commission a debt collection agency. debt collection agency . The term "debt collection" comes from the banking industry. It refers to the collection of money for debts, for example for due bills of exchange and invoices. When it comes to collecting receivables in the event of late payment, our the affiliated debt collection agencies can help you.

• Digital Content Directive 2019/770
• Apply for a court order for payment electronically
• Affiliated collection agencies