Consumer protection in the light of digitalisation (EN)

ABG, §§ 305 ff. BGB

Our notes

• The clause prohibition catalogue of § 308 BGB has been extended by the regulations concerning the exclusion of assignment in § 308 no. 9 a, b) and applies since 01.10.2021. Such prohibitions of assignment are no longer effective with a few exceptions. The option of commissioning debt collection agencies to enforce the law should be kept open for consumers.

• Remove such assignment exclusions from the GTC.

• Since 01.03.2022, it has been mandatory under § 309 no. 9 a) BGB that continuing obligations may not be agreed as binding for more than 2 years.

• Reduce the minimum contract term to less than or equal to 2 years.

• According to § 309 No.9 b) B GB, a tacit extension of such contractual relationships binding the other party is generally invalid since 01.03.2022. This should only be possible if the extension is only for an indefinite period and the other party is granted the right to terminate at any time with a maximum of 1 month’s notice.

• Specify an indefinite extension of the contract and grant the right to terminate with a notice period of less than or equal to 1 month.

• In general, since 01.03.2022 the notice period may not exceed 1 month even for the originally agreed contractual relationship according to § 309 No.9 c) BGB.

• Reduce the notice period to less than or equal to 1 month.

• As a counterpart to the “order button” in § 312j BGB relevant for the conclusion of the contract, the “termination button” in § 312k BGB has now been newly introduced for the consumer-friendly termination of the contract. If the button has not been implemented by then, the consumer can terminate the contract at any time without observing a period of notice according to § 312 k para. VI p. 1 BGB.

• The general terms and conditions should contain information contrary to the access fiction of § 312 k para. IV BGB in order to counteract the presumption. Otherwise, the cancellation button must be technically implemented in time.

Digital contents and services,

§§ 327 ff. BGB

Our notes

• According to § 327 BGB, the payment of a “price” can be demanded as contractual consideration, which also includes the digital representation of a value such as cryptocurrencies as well as data.

• For you, this means that the consumer is entitled to warranty rights even if he does not pay a consideration in the classical sense. Depending on the business model, you can weigh up which consideration is most beneficial to you.

• Section 327 f of the German Civil Code (BGB ) now imposes an obligation on entrepreneurs to update their digital products. This includes not only the provision but also the information about this. Failure to comply with this new obligation subsequently causes the product to be defective. The relevant defect rights can be found in §§ 327 i to p BGB.

• Your programme of duties now includes the provision of updates and information about them. Such an obligation to provide updates must be guaranteed and secured in contracts with your manufacturers, as they are usually in a position to provide them. In this way you choose a direct solution in the relationship with the manufacturer without having to rely on § 327 u BGB. Additional references to the necessity of updates in the product descriptions or general terms and conditions are conceivable.

• §Section 327 h BGB offers the possibility of deviating from some of the new regulations, which, however, according to Section 327 s BGB may never lead to the consumer’s disadvantage. If such an agreement is desired, the consumer must be specifically informed before submitting his contractual declaration that a certain feature of the digital product deviates from the objective requirements and this deviation must be expressly and separately agreed in the contract.

• Neither an implied agreement nor a ticked box or a provision in the GTCs is sufficient for a valid deviating agreement. Rather, the provision must be expressly agreed by you to the consumer in a separate contract with specific reference to the concrete deviation of a certain characteristic.

• The reversal of the burden of proof for the defectiveness was set at 1 year according to § 327 k BGB.

• If a defect becomes apparent within one year after the provision of your digital product, it must be assumed that the item was already defective before this time. If necessary, adapt your GTC to the new time requirements.

• Recourse claims for reimbursement of expenses in the supply chain arise from § 327 u BGB. This recourse to your manufacturer includes the B2B relationship.

• You cannot deviate from this to your disadvantage according to § 327 u para. IV BGB. However, the agreement of a direct manufacturer’s warranty remains possible.

Goods and such with digital elements,

§§ 434 ff, 475 ff. BGB

Notes

• Amendment of the concept of material defect in § 434 BGB: An item is now free from material defects if it complies with the subjective requirements (para. II), the objective requirements (para. III) and the assembly requirements (para. IV) at the time of passing of risk.

• Previously, the agreed (subjective) quality had priority. Now all levels are placed on an equal footing. However, this does not make a fundamental difference in handling. In case of doubt, you should adapt your sales contracts to the new concept of material defect.

• In addition, §§ 475 b), c) of the German Civil Code (BGB) impose additional requirements on the freedom from defects of goods with digital elements (such as compliance with the obligation to update, § 475 b) paras. II to VI BGB).

• Their programme of duties has expanded in particular to include the obligation to update. Such an obligation must be guaranteed and secured in contracts with your manufacturers, as they are usually more likely to be in a position to provide it. Conceivable are references to the necessity of updates in the product descriptions and general terms and conditions.

• It is possible to agree on a “negative quality” according to § 476 para. I p. 2 BGB, if the consumer was specifically informed before submitting his contractual declaration that a certain feature of the goods deviates from the objective requirements and this deviation was expressly and separately agreed in the contract.

• Neither a (previously sufficient) implied agreement nor a pre-ticked box or a provision in GTCs is sufficient for an effective “negative quality agreement”. Rather, it must be expressly agreed by you to the consumer in a separate contract with specific reference to the concrete deviation of a certain characteristic.

• In the context of subsequent performance according to § 439 BGB, the buyer is obliged to make the item available to the seller for the purpose of rectification (para. V) and you as the seller are obliged to take back the replaced item at your expense (para. VI). However, you can have these costs reimbursed by your supplier in accordance with § 445 a I BGB.

• You can refer to this in your general terms and conditions and, for example, explicitly include reimbursement regulations in a supplier contract. If the consumer is not prepared to provide you with the item, he has not made an effective request for supplementary performance and, for example, withdrawal will not be possible until then.

• New § 475 para. V BGB: Subsequent performance must take place within a reasonable time and without considerable inconvenience for the consumer.

• No effects on GTC or contracts. It would be conceivable to define the concept of a reasonable time in more detail.

• Neither knowledge of a defect nor grossly negligent ignorance of a defect as such deprives the consumer of his warranty rights according to § 475 para. III p. 2 BGB, which now also mentions § 442 BGB.

• In order to exclude warranty rights, a deviating agreement from the objective condition according to § 476 para. I p. 2 BGB is required.

• In the case of certain exceptions mentioned in § 475 d para. I BGB, an express deadline for subsequent performance by the consumer has now become dispensable. A reasonable period of time automatically begins to run upon notification of the defect. Setting a deadline is also not required in the cases of para. I for claims for damages according to § 475 d para. II B GB.

• In future, remove the requirement for a period of grace from your agreements in cases where a period of grace is not required.

• §Section 475 e BGB establishes new special provisions for the limitation period, whereby the suspension of expiry in Paragraph I refers to cases of the permanent provision of digital elements, that in Paragraph II to the breach of the obligation to update, that in Paragraph III is of a general nature and that in Paragraph IV concerns cases of supplementary performance.

• Adapt your limitation rules to the relevant limitations on expiry.

• The reversal of the burden of proof has been extended from formerly 6 months to 1 year from the transfer of risk according to § 477 I 1 BGB.

• If a defect becomes apparent within 1 year after the time at which the risk of deterioration or loss of the goods owed by you passes to the consumer (regularly at the time of handover), it must be assumed that the item was already defective before this time. Adapt your general terms and conditions to the new time requirements.

• The guarantee declarations according to § 479 BGB are tightened in terms of the transparency requirement. According to § 479 para. II BGB, they must now be made available to the consumer on a durable medium as defined in § 126 b p. 2 BGB at the latest at the time of delivery, even without the consumer’s request. For a durability guarantee, § 479 para. III BGB stipulates that at least one subsequent performance must be guaranteed.

• In addition to the drafting of your guarantee declarations according to § 479 para. I BGB, the innovation also affects you in the practical implementation. You must make them permanently available to the consumer, for example via e-mail. Your durability guarantees may have to be adapted to the minimum content of the supplementary performance.