Last Updated on June 27, 2021 by LawEuro
German Civil Code (BGB) German law
Division 3
Contractual obligations
Title 1
Creation, subject matter and termination
Subtitle 1
Creation
Section 311
Obligations created by legal transaction and obligations similar to legal transactions
(1) In order to create an obligation by legal transaction and to alter the contents of an obligation, a contract between the parties is necessary, unless otherwise provided by statute.
(2) An obligation with duties under section 241 (2) also comes into existence by
1. the commencement of contract negotiations
2. the initiation of a contract where one party, with regard to a potential contractual relationship, gives the other party the possibility of affecting his rights, legal interests and other interests, or entrusts these to him, or
3. similar business contacts.
(3) An obligation with duties under section 241 (2) may also come into existence in relation to persons who are not themselves intended to be parties to the contract. Such an obligation comes into existence in particular if the third party, by laying claim to being given a particularly high degree of trust, substantially influences the pre-contract negotiations or the entering into of the contract.
Section 311a
Obstacle to performance when contract is entered into
(1) A contract is not prevented from being effective by the fact that under section 275 (1) to (3) the obligor does not need to perform and the obstacle to performance already exists when the contract is entered into.
(2) The obligee may, at his option, demand damages in lieu of performance or reimbursement of his expenses in the extent specified in section 284. This does not apply if the obligor was not aware of the obstacle to performance when entering into the contract and is also not responsible for his lack of awareness. Section 281 (1) sentences 2 and 3 and (5) apply with the necessary modifications.
Section 311b
Contracts on plots of land, assets and an estate
(1) A contract by which one party agrees to transfer or acquire ownership of a plot of land must be recorded by a notary. A contract not entered into in this form becomes valid with all its contents if a declaration of conveyance and registration in the Land Register are effected.
(2) A contract by which one party agrees to transfer his future property or a fraction of his future property or to charge it with a usufruct is void.
(3) A contract by which one party agrees to transfer his present property or a fraction of his present property or to charge it with a usufruct must be recorded by a notary.
(4) A contract relating to the estate of a third party who is still living is void. The same applies to a contract relating to a compulsory portion or a legacy from the estate of a third party who is still living.
(5) Subsection (4) above does not apply to a contract entered into between future heirs on intestacy relating to the hereditary share on intestacy or the compulsory portion of one of them. Such a contract must be recorded by a notary.
Section 311c
Application to accessories
If a person agrees to dispose of or charge a thing, that duty, in case of doubt, also applies to accessories of the thing.
Subtitle 2
Principles applying to consumer contracts; particular types of sale*)
*) Official note: This subtitle serves to implement 1. Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ L 372 of 31 December 1985, p. 31), 2. Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144, p. 19), 3. and Articles 10, 11 and 18 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce” OJ L 178, p. 1).
Chapter 1
Scope of application and principles applying to consumer contracts
Section 312
Scope of application
(1) The provisions of chapters 1 and 2 of this subtitle apply only to consumer contracts within the meaning of section 310 (3) that have as their subject matter the nongratuitous performance by the trader.
(2) Of the provisions set out in chapters 1 and 2 of this subtitle, solely section 312a subsections (1), (3), (4), and (6) applies to the following contracts:
1. contracts that have been notarially recorded
a) and that relate to financial services, where such contracts are off-premises contracts,
b) and that do not constitute a contract relating to financial services; this applies to contracts, regarding which the law does not require the contract or contract declaration to be notarially recorded, solely in those cases in which the notary instructs the parties that the information requirements pursuant to section 312d (1) and the right of withdrawal pursuant to section 312g (1) have ceased to apply;
2. contracts relating to the creation, acquisition or transfer of ownership of plots of land or other rights to same,
3. contracts relating to the construction of new buildings or to the substantial conversion of existing buildings,
4. contracts relating to travel services pursuant to section 651a, if these are
a) distance contracts,
b) off-premises contracts, if the oral negotiations on the basis of which the contract is concluded were conducted in response to a previous order placed by the consumer, or
5. contracts relating to the carriage of passengers,
6. timeshare contracts, contracts relating to long-term holiday products, brokerage contracts, and exchange system contracts pursuant to sections 481 to 481b,
7. treatment contracts pursuant to section 630a,
8. contracts relating to the supply of food products, beverages or other household objects of everyday use which are supplied to the residence, place of abode or place of employment of a consumer by a trader in the course of frequent and regular rounds,
9. contracts that are concluded with the use of automatic vending machines and automated business premises,
10. contracts for the use of public payphones that are concluded with telecommunications operators through such public payphones,
11. contracts concluded for the use of one single connection by telephone, Internet or fax established by a consumer,
12. off-premises contracts, in which the performance is immediately rendered and paid for at the conclusion of the negotiations and the remuneration to be paid by the consumer does not exceed 40 euros, and
13. contracts relating to the sale of movable things by way of an execution of judgment or otherwise by authority of law.
(3) Solely the following of the provisions set out in chapters 1 and 2 of this subtitle apply to contracts relating to social services, such as childcare and support of families and persons permanently or temporarily in need, including long-term care:
1. the definitions of off-premises contracts and of distance contracts pursuant to sections 312b and 312c,
2. section 312a (1) regarding the disclosure obligation in the case of telephone calls,
3. section 312a (3) regarding the effectiveness of an agreement directed towards obtaining extra payment in addition to the remuneration agreed upon for the principal performance,
4. section 312a (4) regarding the effectiveness of an agreement for fees for the use of means of payment,
5. section 312a (6),
6. section 312d (1) in conjunction with Article 246a section 1 subsections (2) and (3) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] regarding the obligation to inform on the right of withdrawal, and
7. section 312g regarding the right of withdrawal.
(4) Of the provisions made in chapters 1 and 2 of this subtitle, solely the stipulations set out in subsection (3) numbers 1 through 7 apply to contracts relating to the rental of accommodation for residential purposes. The stipulations set out in subsection (3) numbers 1, 6, and 7 do not apply, however, to the creation of a lease relationship for accommodation serving residential purposes if the lessee has previously inspected the dwelling.
(5) In the case of contractual relationships relating to banking services and services of a credit, insurance, personal pension, investment or payment nature (financial services), that consist of an initial agreement with transactions following upon it or a series of separate transactions following upon it of the same type that have a temporal connection, the provisions made in chapters 1 and 2 of this subtitle apply only to the first agreement. Section 312a subsections (1), (3), (4), and (6) additionally applies to each transaction. Where the transactions set out in sentence 1 follow one another without such an agreement, the provisions on the duties of a trader to provide information apply only to the first transaction. However, if no transaction of the same type occurs for longer than one year, the next transaction is deemed to be the first transaction of a new series within the meaning of sentence 3.
(6) Of the provisions made in chapters 1 and 2 of this subtitle, solely section 312a subsections (3), (4), and (6) applies to contracts relating to insurance policies as well as to contracts relating to the brokerage of such policies.
Section 312a
General obligations and principles applying to consumer contracts; limits to the agreement of remuneration
(1) Where the trader or a person acting in his name or on his behalf makes a telephone call to the consumer with a view to concluding a contract with same, he shall, at the beginning of the conversation, disclose his identity and, where applicable, the identity of the person on whose behalf he is making the call, as well as the commercial purpose of the call.
(2) The trader is obliged to inform the consumer in accordance with the stipulations of Article 246 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche]. The trader may demand that the consumer cover freight, delivery, or postal charges and other costs only inasmuch as he has informed the consumer of these costs in accordance with the requirements established in Article 246 (1) number 3 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche]. Sentences 1 and 2 apply neither to off-premises contracts nor to distance contracts nor to contracts relating to financial services.
(3) A trader may conclude an agreement with a consumer that is directed towards obtaining extra payment from the consumer in addition to the remuneration agreed upon for the principal performance only if this is done expressly. Where the trader and the consumer conclude a contract in electronic commerce, such an agreement will form part of the contract only if the trader does not bring about the agreement by means of a default option.
(4) An agreement obligating a consumer to pay a fee for the use of a certain means of payment by way of fulfilling his contractual obligations is ineffective if
1. no customary and reasonable payment method is available to the consumer that is free of charge, or
2. the fee agreed exceeds the cost borne by the trader for the use of such means of payment.
(5) An agreement obligating a consumer to pay a fee for those cases in which the consumer contacts the trader via a telephone line that the trader operates for the purpose of answering questions or providing explanations regarding a contract concluded by the parties is ineffective if the fee agreed upon exceeds the fee charged for the use merely of the telecommunication service as such. Where an agreement is ineffective pursuant to sentence 1, the consumer is not bound to pay a fee for the call to the telecommunication services provider, either. The telecommunication services provider has the right to demand the fee for the use merely of the telecommunication services from the trader who has concluded the ineffective agreement with the consumer.
(6) Where an agreement pursuant to subsections (3) to (5) has not come to form part of the contract or where it is ineffective, the contract remains effective in all other respects.
Chapter 2
Off-premises contracts and distance contracts
Section 312b
Off-premises contracts
(1) Off-premises contracts are contracts
1. that are concluded with the simultaneous physical presence of the consumer and of the trader, in a place which is not the business premises of the trader,
2. for which an offer was made by the consumer in the same circumstances as referred to in number 1,
3. that are concluded on the business premises of the trader or through any means of distance communication, but where, immediately prior to such conclusion, the consumer had been personally and individually addressed, in a place which is not the business premises of the trader, in the simultaneous physical presence of the consumer and the trader, or
4. that are concluded during an excursion organised by the trader or with the trader’s assistance, with the aim of promoting goods or services to the consumer and entering into the corresponding contracts with him.
Any persons acting in the trader’s name or on his behalf are in a position equivalent to that of the trader.
(2) Business premises within the meaning of subsection (1) are any immovable retail premises where the trader carries out his activity on a permanent basis and any movable retail premises where the trader carries out his activity on a usual basis. Any retail premises in which the person acting in the trader’s name or on his behalf carries out his activity on a permanent or usual basis are equivalent to the premises of the trader.
Section 312c
Distance contracts
(1) Distance contracts are contracts for which the trader, or a person acting in the trader’s name or on his behalf, and the consumer exclusively avail themselves of means of distance communication in negotiating and concluding the contract, except where the conclusion of the contract does not take place in the context of a sales or service-provision scheme organised for distance sales.
(2) Means of distance communication within the meaning of this Code are all means of communication which can be used to initiate or to conclude a contract, without requiring the simultaneous physical presence of the parties to the contract, such as letters, catalogues, telephone calls, faxes, emails, text messages sent via the mobile telephone service (SMS) as well as messages broadcast and sent via teleservices.
Section 312d
Information requirements
(1) In the case of off-premises contracts and of distance contracts, the trader is obliged to inform the consumer according to the stipulations of Article 246a of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche]. Unless the parties to the contract have expressly agreed otherwise, the information the trader provides by way of fulfilling this obligation shall become part of the contract’s subject matter.
(2) In the case of off-premises contracts and of distance contracts for financial services, the trader is obliged, in derogation from subsection (1), to inform the consumer in accordance with the stipulations of Article 246b of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
Section 312e
Violation of information obligations as to costs
The trader may demand that the consumer cover any freight, delivery, or postal charges and other costs insofar as he has informed the consumer of these costs in accordance with the requirements set out in section 312d (1) in conjunction with Article 246a section 1 (1) sentence 1 number 4 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
Section 312f
Copies and confirmations
(1) In the case of off-premises contracts, the trader is obliged to forthwith provide the consumer with the following documents on paper:
1. a copy of a contract document signed by the parties concluding the contract such that their identity is recognisable, or
2. a confirmation of the contract reflecting the contract’s content.
If the consumer agrees, some other durable medium may be used for the copy or the confirmation of the contract. The confirmation pursuant to sentence 1 must include the information specified in Article 246a of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] unless the trader has provided the consumer with such information on a durable medium, by way of fulfilling his information requirements pursuant to section 312d (1), already prior to concluding the contract.
(2) In the case of distance contracts, the trader is obliged to provide the consumer with a confirmation of the contract, on a durable medium, in which the content of the contract is set out, and to do so within a reasonable period of time after having concluded the contract, at the latest, however, at the time of the delivery of the goods or before the performance of the service. The confirmation pursuant sentence 1 must include the information specified in Article 246a of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] unless the trader has provided the consumer with such information on a durable medium prior to concluding the contract by way of fulfilling his information requirements pursuant to section 312d (1).
(3) In the case of contracts for the supply of digital content that is not contained in a tangible medium and that is produced and made available in digital form (digital content), the copy or the confirmation of the contract pursuant to subsections (1) and (2) is to likewise record, where appropriate, that prior to the performance of the contract, the consumer
1. has expressly consented to the trader commencing with the performance of the contract prior to expiry of the withdrawal period, and
2. has acknowledged that, by his consent, he will lose the right to withdraw from the contract upon the performance of the contract having commenced.
(4) This provision does not apply to contracts relating to financial services.
Section 312g
Right of withdrawal
(1) In the case of off-premises contracts and of distance contracts, the consumer has a right of withdrawal pursuant to section 355.
(2) Unless otherwise agreed by the parties, the right of withdrawal shall not exist for the following contracts:
1. contracts for the supply of goods that are not pre-fabricated and the production of which is governed by an individual choice of or decision by the consumer, or that are clearly tailored to personal needs of the consumer,
2. contracts for the supply of goods which are highly perishable, or which may quickly pass their expiration date,
3. contracts for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if such goods were unsealed after delivery,
4. contracts for the supply of goods which, according to their nature, are inseparably mixed, after delivery, with other items,
5. contracts for the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place at the earliest after thirty days following the conclusion of the sales contract, and the current value of which is dependent on fluctuations in the market which cannot be controlled by the trader,
6. contracts for the supply of sealed audio or sealed video recordings or sealed computer software, if they were unsealed after delivery,
7. contracts for the delivery of newspapers, periodicals or magazines with the exception of subscription contracts for the supply of such publications,
8. contracts for the supply of goods or the provision of services including the provision of financial services, whose price is dependent on fluctuations on the financial market which cannot be controlled by the trader and which may occur within the withdrawal period, including in particular services in connection with stock, with shares in open-ended investment assets within the meaning of section 1 (4) of the Capital Investment Code [Kapitalanlagegesetzbuch], and with other tradeable securities, foreign currency, derivatives or money market instruments,
9. subject to the stipulations of sentence 2, contracts for the provision of services in the fields of accommodation other than for residential purposes, transport of goods, car rental services, deliveries of food and beverages, or services related to leisure activities, if the contract provides for a specific date or period of performance,
10. contracts that are concluded in the context of a method of sale where goods or services are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person, through a transparent, competitive bidding procedure run by an auctioneer and where the successful bidder is obliged to purchase the goods or services (publicly accessible auction),
11. contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance; this shall not apply as regards additional services provided on the occasion of such visit that the consumer has not specifically requested, or as regards any goods delivered on the occasion of such visit that are not absolutely required as replacement parts in carrying out the maintenance or in making the repairs,
12. contracts for the provision of betting and lottery services unless the consumer has made his contract declaration by telephone or the contract is an off-premises contract, and
13. contracts that are notarially recorded; this shall apply to distance contracts relating to financial services only in those cases in which the notary confirms that the rights of the consumer set out in section 312d (2) are safeguarded.
The exception made in sentence 1 number 9 does not apply to contracts relating to travel services pursuant to section 651a if they are off-premises contracts, unless the oral negotiations on the basis of which the contract is concluded were conducted in response to a previous order placed by the consumer.
(3) In addition, the right of withdrawal does not exist for contracts regarding which the consumer, under sections 495 and 506 to 512, is already entitled to a right of withdrawal under section 355, nor does it exist in the case of off-premises contracts regarding which the consumer is already entitled to a right of withdrawal pursuant to section 305 subsections (1) to (6) of the Capital Investment Code [Kapitalanlagegesetzbuch].
Section 312h
Termination and power of attorney to terminate
If a continuing obligation is established between a trader and a consumer pursuant to this subtitle intended to substitute a continuing obligation existing between the consumer and another trader, and on the occasion of the establishment of the continuing obligation the consumer
1. declares the termination of the existing continuing obligation and commissions the trader or a third party commissioned by the latter to transmit the termination to the previous contractual partner of the consumer, or
2. empowers the trader or a third party commissioned by the latter to declare the termination towards the consumer’s previous contractual partner,
the consumer’s termination or the power of attorney shall require to be in text form.
Chapter 3
Contracts concluded in electronic commerce
Section 312i
General obligations in electronic commerce
(1) If a trader uses teleservices in order to conclude a contract for the supply of goods or the rendering of services (e-commerce contract), he must
1. provide the customer with reasonable, effective, and accessible technical means with the aid of which the customer may identify and correct input errors prior to making his order,
2. communicate to the customer clearly and comprehensibly the information specified in Article 246c of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] in good time prior to sending his order,
3. confirm receipt of the order without undue delay by electronic means for the customer, and
4. provide the customer with the opportunity to retrieve the contract terms including the standard business terms when the contract is concluded and save them in a form that allows for their reproduction.
The order and the acknowledgement of receipt within the meaning of sentence 1 number 3 are deemed to have been received if the parties for whom they are intended are able to retrieve them in normal circumstances.
(2) Subsection (1) sentence 1 number 1 to 3 must not be applied if the contract is entered into exclusively by way of personal communication. Subsection (1) sentence 1 number 1 to 3 and sentence 2 must not be applied if otherwise agreed in a contract between parties who are not consumers.
(3) More extensive information obligations resulting from other stipulations of the law remain unaffected.
Section 312j
Special obligations vis-à-vis consumers in electronic commerce
(1) On the websites used for electronic commerce with consumers, the trader is to indicate clearly and unequivocally at the latest at the beginning of the ordering process, in addition to the information provided pursuant to section 312i (1), whether any delivery restrictions apply and which means of payment are accepted.
(2) In the case of a consumer contract concluded in electronic commerce that has as its subject-matter a for-a-fee service provided by the trader, the trader must provide to the consumer the information in accordance with Article 246a section 1 (1) sentence 1 number 1, 4, 5, 11, and 12 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche], and must do so in an unambiguous, comprehensible manner as well as prominently, directly before the consumer submits his order.
(3) In case of a contract in accordance with subsection (2), the trader is to arrange the ordering situation such that the consumer explicitly confirms with his order that he undertakes to effect a payment. If the order is placed using a button, the obligation of the trader under sentence 1 is only deemed to have been met if this button is marked in an easy-to-read manner with nothing else but the words “Order and Pay” (zahlungspflichtig bestellen), or with equally unambiguous wording.
(4) A contract in accordance with subsection (2) is only created if the trader meets his obligation under subsection (3).
(5) Subsections (2) to (4) do not apply if the contract is concluded exclusively by personal communication. The obligations set out in subsections (1) and (2) apply neither to websites concerning financial services nor to contracts relating to financial services.
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