Last Updated on June 27, 2021 by LawEuro
German Civil Code (BGB) German law
Title 5
Revocation; right of withdrawal in consumer contracts
Subtitle 1
Revocation*)
*) Official note: This provision also serves in part to implement Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, p. 12).
Section 346
Effects of revocation
(1) If one party to a contract has contractually reserved the right to revoke or if he has a statutory right of revocation, then, in the case of revocation, performance received and emoluments taken are to be returned.
(2) In lieu of restitution or return, the obligor must provide compensation for value, to the extent that
1. restitution or return is excluded by the nature of what has been obtained,
2. he has used up, disposed of, encumbered, processed or redesigned the object received,
3. the object received has deteriorated or has been destroyed; but deterioration that is caused by the object being used in accordance with its intended use is not taken into account.
If consideration is specified in the contract, then this is to be used as a basis when the compensation for value is calculated; if compensation for value for the benefit of use of a loan is to be paid, it can be shown that the value of the benefit of use was lower.
(3) The duty to compensate for value does not apply
1. if the defect justifying revocation only became apparent during processing or transformation of the object,
2. to the extent that the obligee is responsible for the deterioration or destruction or that the damage would also have occurred if the object had remained with the obligee,
3. if in case of statutory revocation the deterioration or destruction occurred with the person entitled, although the latter showed the care that he customarily exercises in his own affairs.
Any remaining enrichment must be returned.
(4) The obligee may demand damages, in accordance with sections 280 to 283, for breach of a duty under subsection (1) above.
Section 347
Emoluments and outlays after revocation
(1) If the obligor fails to take emoluments contrary to the rules of proper management although he could have done so, then he is obliged to compensate the obligee for the value. In the case of a statutory right of revocation, the person entitled must in regard to emoluments be responsible only for the care that he customarily exercises in his own affairs.
(2) If the obligor returns the object or gives compensation for the value or if his duty to compensate for value under section 346 (3) no. 1 or 2 is excluded, he must be reimbursed for his necessary outlays. Other expenses are to be reimbursed to the extent that the obligee is enriched by them.
Section 348
Reciprocal and simultaneous performance
The obligations of the parties arising from revocation are to be performed reciprocally and simultaneously. The provisions of sections 320 and 322 apply with the necessary modifications.
Section 349
Declaration of revocation
Revocation is effected by declaration to the other party.
Section 350
Extinction of the right of revocation after a period of time has been specified
If a period of time has not been agreed for the exercise of the contractual right of revocation, then the other party may specify a reasonable period of time within which the person entitled to revoke must exercise that right. The right of revocation is extinguished if revocation is not declared before the end of that period.
Section 351
Indivisibility of the right of revocation
If, in a contract, there is more than one person on one side or the other, the right of revocation may be exercised only by all and against all of them. If the right of revocation is extinguished for one of the persons entitled, it is also extinguished for the others.
Section 352
Set-off after nonperformance
Revocation for failure to perform an obligation is ineffective if the obligor was able to release himself from the obligation by means of set-off and he declares set-off without undue delay after the revocation.
Section 353
Revocation in return for forfeit money
If the right of revocation in return for payment of forfeit money has been reserved, the revocation is ineffective if the forfeit money is not paid before the declaration or when the declaration is made and the other party, for this reason, rejects the declaration without undue delay. However, the declaration is effective if the forfeit money is paid without undue delay after the rejection.
Section 354
Forfeiture of rights
If a contract has been entered into subject to the reservation that the obligor will lose his rights under the contract if he does not perform his obligation, the obligee is entitled to revoke the contract if this circumstance occurs.
Subtitle 2
Right of withdrawal in consumer contracts*)
*) 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 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (OJ L 280, p. 82), 3. 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 of 4 June 1997, p. 19).
Section 355
Right of withdrawal in consumer contracts
(1) If a consumer is given, by statute, a right of withdrawal according to this provision, then the consumer and the trader are no longer bound by their declarations of intention to conclude the contract if the consumer withdraws from his declaration of intention within the period specified. The withdrawal is effected by a declaration being made to the trader. The declaration must unambiguously reflect the consumer’s decision to withdraw from the contract. The withdrawal does not have to provide any grounds. Dispatch of the withdrawal in good time is sufficient to comply with the time limit.
(2) The withdrawal period is fourteen days. Unless otherwise provided, it begins upon the contract having been concluded.
(3) In the case of the contract being withdrawn from, the performance received is to be returned without undue delay. Where the law has specified a maximum period within which restitution is to be made, this shall commence running for the trader upon receipt of the declaration of withdrawal and, for the consumer, upon dispatch of the declaration of withdrawal. A consumer will be complying with this period by dispatching the goods in good time. In the event of withdrawal, the trader bears the risk of the return shipment of the goods.
Section 356
Right of withdrawal in off-premises contracts and distance contracts
(1) The trader may provide the consumer with the opportunity to complete and transmit the model withdrawal form pursuant to schedule 2 to Article 246a section 1 (2) sentence 1 number 1 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche], or some other unambiguous declaration of withdrawal, on the trader’s website. Where the consumer avails himself of this opportunity, the trader must confirm receipt of the withdrawal to the consumer without undue delay on a durable medium.
(2) The withdrawal period commences
1. in the case of a sale of consumer goods
a) that is not governed by letters b to d as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the goods,
b) in the context of which the consumer has ordered several goods as part of a single order and the goods are delivered separately, as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the last of the goods,
c) in the context of which the goods are delivered in several partial shipments or items, as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the last partial shipment or the last item,
d) that is directed towards the regular delivery of goods over a specified period of time, as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the first goods,
2. in the case of a contract that has as its subject matter the supply of water, gas, electricity, district heating or digital content which is not contained in a tangible medium, without the supply having been offered for sale in a limited volume or set quantity, upon conclusion of the contract.
(3) The withdrawal period does not commence prior to the trader having informed the consumer in accordance with the requirements of Article 246a section 1 (2) sentence 1 number 1 or of Article 246b section 2 (1) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche]. The right of withdrawal expires at the latest twelve months and fourteen days following the point in time set out in subsection (2) or section 355 (2) sentence 2. Sentence 2 does not apply to contracts relating to financial services.
(4) In the case of a contract for the provision of services, the right of withdrawal expires also in those cases in which the trader has completely provided the service and began with the performance of the service only after the consumer had given his express consent thereto and concurrently acknowledged that he would lose the right to withdraw from the contract once the trader has fully performed the contract. In the case of a contract relating to the provision of financial services, the right of withdrawal expires, in derogation from sentence 1, if the contract was performed in full by both parties at the express wish of the consumer before the consumer exercises his right of withdrawal.
(5) In the case of a contract for the supply of digital content that is not contained in a tangible medium, the right of withdrawal expires also if the trader began with the performance of the contract after the consumer
1. had expressly consented to the trader beginning with the performance of the contract prior to expiry of the withdrawal period, and
2. had acknowledged that by his consent, he would lose the right to withdraw from the contract upon the performance of the contract having commenced.
Section 356a
Right of withdrawal in case of timeshare, long-term holiday product, brokerage contracts, and exchange system contracts
(1) The withdrawal period commences at the time of conclusion of the contract or of the conclusion of a preliminary contract. If the consumer does not receive the contractual document or the copy of the contract until after conclusion of the contract, the withdrawal period commences at the time of receipt.
(2) If the consumer has not been provided with the pre-contractual information referred to in section 482 (1) or with the form designated in Article 242 section 1 (2) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] prior to conclusion of the contract, not completely or not in the language prescribed in section 483 (1), the withdrawal period, notwithstanding subsection (1), does not commence until complete receipt of the pre-contractual information and of the form in the prescribed language. The right of withdrawal expires at the latest three months and fourteen days after the time designated in subsection (1).
(3) If the consumer has not been provided with the instruction regarding withdrawal designated in section 482a before the contract has been entered into, either not completely or not in the language prescribed in section 483 (1), the withdrawal period, notwithstanding subsection (1), does not commence until the complete the instructions on withdrawal has been received in the prescribed language. The right of withdrawal expires where appropriate notwithstanding subsection (2) sentence 2, at the latest twelve months and fourteen days after the time named in subsection (1).
(4) If the consumer has concluded a timeshare contract and an exchange system contract, and if these contracts have been offered to him at the same time, the withdrawal period for both contracts commences at the time applicable under subsection (1) to the time-share contract. Subsections (2) and (3) apply with the necessary modifications.
Section 356b
Right of withdrawal in consumer credit agreements
(1) The withdrawal period does not commence before the lender has provided the borrower with a contract document intended for the latter, with the written application of the borrower or with a copy of the contract document or of his application.
(2) Where the contract document provided to the borrower pursuant to subsection (1) does not include the obligatory information required by section 492 (2), the withdrawal period commences only with the subsequent provision of this information pursuant to section 492 (6). In such event, the withdrawal period shall amount to one month.
(3) In the event provided for by section 494 (7), the withdrawal period commences only once the borrower has received the copy of the contract designated therein.
Section 356c
Right of withdrawal in contracts for delivery by instalments
(1) In the case of a contract for delivery by instalments that is neither a distance contract nor an off-premises contract, the withdrawal period does not commence prior to the trader having informed the consumer pursuant to Article 246 (3) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] as to the latter’s right of withdrawal.
(2) Section 356 (1) applies with the necessary modifications. The right of withdrawal expires at the latest twelve months and fourteen days following the point in time set out in section 355 (2) sentence 2.
Section 357
Legal consequences of withdrawal from off-premises contracts and distance contracts, to the exception of contracts relating to financial services
(1) The performance received is to be restituted at the latest after fourteen days.
(2) The trader must also restitute any payments the consumer may have made for the delivery. This does not apply inasmuch as the consumer has incurred additional costs because he opted for a type of delivery other than the least expensive type of standard delivery offered by the trader.
(3) In making the repayment, the trader must use the same means of payment that the consumer used in making the payment. Sentence 1 does not apply if the parties expressly have agreed otherwise and the consumer does not incur any costs as a result.
(4) In the case of a sale of consumer goods, the trader may refuse to make repayment until he has received the returned goods or the consumer has provided proof that he has dispatched the goods. This does not apply if the trader has offered to collect the goods.
(5) The consumer is not obliged to arrange for the return shipment of the goods received if the trader has offered to collect the goods.
(6) The consumer bears the direct costs of return shipment of the goods if the trader has informed the consumer pursuant to Article 246a section 1 (2) sentence 1 number 2 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] of this obligation. Sentence 1 does not apply if the trader has stated that he is prepared to bear these costs. In the case of off-premises contracts, in the context of which the goods were delivered to the consumer’s dwelling at the time the contract was concluded, the trader is obliged to collect the goods at his own costs if, by their nature, these goods cannot be returned by post.
(7) The consumer shall be liable for any diminished value of the goods if
1. the diminished value results from the handling of the goods in any other manner than that necessary to establish the nature, characteristics, and functioning of the goods, and
2. the trader has informed the consumer pursuant Article 246a section 1 (2) sentence 1 number 1 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] of his right of withdrawal.
(8) Where the consumer withdraws from a contract for the provision of services or the supply of water, gas, or electricity, without their supply having been offered for sale in a limited volume or set quantity, or for the supply of distance heating, the consumer shall owe the trader compensation for the value of the performance provided until the time of the withdrawal in those cases in which the consumer has expressly demanded that the trader begin with the performance prior to expiry of the withdrawal period. The claim pursuant to sentence 1 exists only in those cases in which the trader has properly informed the consumer pursuant to Article 246a section 1 (2) sentence 1 number 1 and 3 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche]. For off-premises contracts, the claim pursuant to sentence 1 exists only in those cases in which the consumer has transmitted his request pursuant to sentence 1 on a durable medium. In calculating the compensation for value, the total price agreed upon is to be used as a basis. If the total price agreed upon is excessive, the compensation for value shall be calculated on the basis of the market value of the performance provided.
(9) Where the consumer withdraws from a contract for the supply of digital content that is not contained in a tangible medium, he shall not compensate for value.
Section 357a
Legal consequences of the withdrawal of contracts relating to financial services
(1) The performance received is to be restituted at the latest after thirty days.
(2) Where off-premises contracts or distance contracts relating to financial services are withdrawn from, the consumer is obliged to pay compensation for the value of the services provided by the trader until the time of the withdrawal if
1. this legal consequence has been indicated to the consumer prior to his making a declaration as to the conclusion of a contract and
2. the consumer has expressly agreed to the trader beginning to perform the service prior to the withdrawal period having ended.
Where contracts relating to nongratuitous financing assistance are withdrawn from that are covered by the exception set out in section 506 (4), section 357 subsections (5) to (8) likewise applies with the necessary modifications. Where the contract relating to nongratuitous financing assistance has as its subject matter the supply of digital content which is not contained in a tangible medium, the consumer is to compensate for the value of the digital content supplied until the time of the withdrawal if
1. this legal consequence has been indicated to the consumer prior to his making a declaration as to the conclusion of a contract , and
2. the consumer has expressly consented to the trader beginning with the supply of the digital content prior to the withdrawal period having ended.
Where consideration is specified in the contract, this is to serve as the basis for calculating the compensation for value. If the total price agreed upon is excessive, the compensation for value shall be calculated on the basis of the market value of the performance provided.
(3) Where consumer credit agreements are withdrawn from, the borrower is to pay the agreed interest for the period lapsing between the disbursement and the repayment of the loan. If the loan is secured by a security right in land, evidence may be submitted as to the value of the benefit of use having been lower than the interest agreed upon. In this case, solely the lower amount is owed. In cases in which contracts relating to nongratuitous financing assistance are withdrawn from that are not covered by the exception set out in section 506 (4), subsection (2) likewise applies, with the necessary modifications, subject to the proviso that the information concerning the right of withdrawal is replaced by the obligatory information under Article 247 section 12 (1) in conjunction with section 6 (2) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche], each of which provisions concerns the right of withdrawal. Over and above this, the borrower must refund to the lender solely the expenditure which the lender has provided to public agencies and cannot demand back.
Section 357b
Legal consequences of the withdrawal of timeshare, long-term holiday product, brokerage contracts, and exchange system contracts
(1) The consumer does not incur any costs in the event of a withdrawal. The trader must reimburse the consumer for the costs of the contract, its implementation, and its reversal. Remuneration for services rendered and for providing residential buildings for use is excluded.
(2) The consumer is to provide compensation for the diminished value of the accommodation within the meaning of section 481 solely inasmuch as the diminishment in value is the result of the accommodation not being used in accordance with its designated purpose.
Section 357c
Legal consequences of revoking contracts for delivery by instalments that are neither distance contracts nor off-premises contracts
Section 357 subsections (1) to 5 applies, with the necessary modifications, to the restitution of the performance received. The consumer bears the direct costs of the return shipment of the items of property received unless the trader has stated that he is prepared to bear these costs. Section 357 (7) applies with the necessary modifications, subject to the proviso that the information pursuant to Article 246a section 1 (2) sentence 1 number 1 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] is replaced by the information pursuant to Article 246 (3) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
Section 358
Contracts linked to the contract from which the consumer has withdrawn
(1) If the consumer has effectively withdrawn his declaration of intention to enter into a contract for the supply of goods or for the provision of a service by a trader, he is also no longer obliged by his declaration of intention to enter into a loan contract linked to this contract.
(2) If the consumer has effectively withdrawn his declaration of intention to enter into a consumer credit agreements on the basis of Section 495 (1), he also ceases to be obliged by his declaration of intention to enter into a contract linked to that consumer credit agreement for the supply of goods or for the provision of a service.
(3) A contract for the supply of goods or for the provision of some other performance and a loan contract pursuant to subsections (1) or (2) are linked if the loan fully or partially serves to finance the other contract and both contracts constitute an economic unit. An economic unit is to be assumed in particular if the trader himself finances the consideration of the consumer or, in the case of financing by a third party, if the lender in preparation for or for entering into the loan contract uses the services of the trader. In the case of a financed acquisition of a plot of land or of an equivalent right, an economic unit is only to be assumed if the lender himself provides the plot of land or the equivalent right to the consumer, or if he, beyond the provision of the loan, promotes acquisition of the plot of land or the equivalent right in cooperation with the trader, by making the interest of the trader in its disposal his own, in full or in part, by assuming functions of the disposing party in planning, advertising or carrying out the project, or by unilaterally favouring the disposing party.
(4) Section 355 (3) and, depending on the type of the linked contract, sections 357 to 357b apply, with the necessary modifications, to the reversal of the linked contract, independently of the type of sale. Where the linked contract is a contract for the supply of digital content that is not contained in a tangible medium and the trader has provided the consumer with a copy or confirmation of the contract pursuant to section 312f, the consumer is to pay, in derogation from section 357 (9) and subject to the prerequisites of section 356 (5), second and third half-sentences, compensation for the value of the digital content supplied until the time of withdrawal. Where the linked contract is a contract for delivery by instalments that is a distance contract or an off-premises contract, then section 357 applies, with the necessary modifications, besides section 355 (3); in all other cases, section 355 (3) and section 357c apply, with the necessary modifications, to linked contracts for the delivery by instalments. In the case of subsection (1), however, claims against the consumer for payment of interest and costs arising from the reversal of the loan contract are excluded. With regard to the legal consequences of withdrawal, the lender assumes the rights and duties of the trader under the linked contract if the loan has already flowed to the trader when the withdrawal becomes effective.
(5) The subsections (2) and (4) above do not apply to consumer credit agreements which serve to finance the acquisition of financial instruments.
Section 359
Objections in the case of linked contracts
(1) The consumer may refuse to repay the loan to the extent that objections under the linked contract would entitle him to refuse his performance to the trader with whom he has entered into the linked contract. This does not apply in the case of objections based on a contract amendment agreed between this trader and the consumer after the consumer credit agreement is entered into. If the consumer may demand a cure, he cannot refuse to repay the loan until the cure has failed.
(2) Subsection (1) must not be applied to credit agreements that serve to finance the acquisition of financial instruments, or if the financed remuneration is less than 200 euros.
Section 360
Related contracts
(1) Where the consumer has effectively withdrawn his declaration of intention to conclude a contract and where the prerequisites for a linked contract are not met, he will also not be bound any longer to his declaration of intention to conclude a related contract. Section 358 (4) sentence 1 to 3 applies with the necessary modifications to the reversal of the related contract. Where the consumer withdraws from a timeshare contract or a contract relating to a long-term holiday product, he does not incur costs for the related contract, either; section 357b (1) sentences 2 and 3 apply with the necessary modifications.
(2) A related contract is given wherever it relates to the contract from which the consumer has withdrawn and concerns a performance that is being provided by the trader under the contract from which the consumer has withdrawn, or by a third party on the basis of an agreement concluded by the third party and the trader under the contract from which the consumer has withdrawn. A consumer credit agreement is a related contract also in those cases in which the loan exclusively serves to finance the contract from which the consumer has withdrawn and the performance by the trader governed by the contract from which the consumer has withdrawn has been exactly specified in the consumer credit agreement.
Section 361
Further claims, deviating agreements and burden of proof
(1) No further claims against the consumer over and above those pursuant to the provisions of this subtitle exist as a result of the withdrawal.
(2) Unless otherwise provided, there may be no deviation from the provisions of this subtitle to the disadvantage of the consumer. Unless otherwise provided, the provisions of this subtitle apply even if they are circumvented by other constructions.
(3) Where the commencement of the withdrawal period is in dispute, the burden of proof is on the trader.
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