Commercial confirmation letter

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The Commercial letters of confirmation (KBS) is in the economy , a written confirmation of an oral contract among merchants . The legal institution of Commercial confirmation letter has become customary law recognized.

General

The content of the confirmation letter sent by one contractual partner is deemed to have been accepted by the other if the other does not immediately object, even if the confirmation incorrectly reproduces the oral contract. It does not matter whether the confirmation is sent as a letter , fax or email . The Roman law principle “whoever remains silent seems to agree” ( Latin qui tacet consentire videtur ) only applies in German law to commercial confirmation letters in exceptional cases.

In private law otherwise the principle that mere silence any declaration of intent is. Commercial law provides for some exceptions (so-called “standardized” or “eloquent” silence) . In the context of commercial transactions between merchants, silence is of greater importance here. The commercial confirmation letter, which is not expressly regulated in the Commercial Code (HGB), must be contradicted immediately by a businessman under certain conditions if he does not want the content of this letter to apply against him. If he does not respond to a commercial letter of confirmation and remains silent, this can be regarded as an acceptance.

Formal requirements

The word "confirmation letter" expresses that it is a confirmation in writing, in which the sender states that he has concluded a contract with the recipient orally / by telephone. The addition “commercial” indicates that such confirmation letters can only develop the legal consequences ascribed to them in business dealings between merchants. Its legal consequences do not arise in business dealings between a company and consumers . This makes the KBS a special form of legal silence that is recognized as a commercial custom ( § 346 HGB ).

Even if a commercial confirmation letter does not necessarily have to be designated as such in the legal sense, the use of the terminology that is common in commercial legal transactions makes the recipient aware of the legal relevance of the letter. If, on the other hand, the sender avoids the wording customary in business dealings, the silence of his business partner only has the legal quality of consent if the function as a letter of confirmation is unmistakably clear from its content.

The effects of the CAB only occur under the following conditions:

  • The recipient must be a businessman or at least take part in business life to a large extent. The sender, on the other hand, does not necessarily have to be a merchant, but must participate in traffic in a comparable way.
  • In fact, contract negotiations must have preceded the letter of confirmation.
  • The commercial confirmation letter must be sent immediately after the contract negotiations, so that the recipient is prepared for the arrival.
  • The letter must confirm the earlier conclusion of the contract, reproducing the content of the contract.
  • Of course, the letter must the recipient also go (see. § 130 BGB ).
  • The sender must be of the opinion that the content of the letter corresponds to the agreement or contains only those deviations that the recipient approves (honesty of the sender is therefore required).
  • The recipient must not have objected immediately .

A CAB therefore regularly assumes that contract negotiations had preceded, and therefore a business discussion about the process “confirmed” in writing must have taken place. However, the recipient of a CAB does not need to object if the content of the letter differs so significantly from the outcome of the negotiation that the sender could honestly not count on the recipient's consent.

Silence of the businessman on an offer

The regulation of § 362 HGB does not only apply between merchants. According to this, silence on the offer is considered to be acceptance , even in the context of commercial customs, silence is to be interpreted as acceptance. Within a commercial business relationship or when the merchant is requested to submit an offer, special obligations are imposed on the merchant. He has to react to the offer, otherwise his silence counts as acceptance. The regulation has two variants:

  • Section 362 (1) sentence 1 HGB (offer within a permanent business relationship):

The operated by the merchant business trade must involve the procurement of transactions for others. This includes the trading business of commission business , freight forwarding business , storage and freight business , brokerage and trust agreements and, in particular, banking and stock exchange transactions. In addition, the application made to the merchant must include such a business agency. Furthermore, a permanent business relationship between the merchant and the applicant is required. This is the case when a number of legal contacts have been made among business people and there is agreement to continue to conclude business with each other.

The required application for the procurement of a business corresponds to that of Section 362, Paragraph 1, Clause 1 of the German Commercial Code. Instead of the special subject of the trade and the permanent business relationship, an offer of agency to the applicant is required. This is to be understood as an invitatio ad offerendum , which, however, has to be addressed individually and not to an indefinite group of people ( Latin Offerta ad incertas personas ). Otherwise every offer for an advertisement would be a case of § 362 HGB. However, such a broad area of ​​application is not intended by law because this would represent too extensive a restriction of private autonomy; Any advertising would therefore mean that offers would have to be rejected immediately.

Effects

If the commercial confirmation letter reflects the content of a contract actually concluded during the previous negotiations, it only has a declaratory effect. If, contrary to the view of the author of the CAB, there was no contract, the confirmation letter has a constitutive effect , i.e. H. the contract is only created through the commercial letter of confirmation.

The commercial confirmation letter is to be distinguished from the order confirmation , in which a contract is only concluded upon receipt, whereas in the commercial confirmation letter the sender already assumes a contract has been concluded.

Switzerland

Also in Switzerland, the commercial letters of confirmation can constitutive legal force unfold if it is not challenged in good time and it was not so different from the negotiation result that after good faith no consent of the recipient can be expected.

Individual evidence

  1. ^ Otto Palandt / Jürgen Ellenberger: Comment BGB . Ed .: Otto Palandt. 79th edition. 2020, p. 447, § 147, No. 11 .
  2. ↑ Martina K. Deckert, The commercial and professional confirmation letter , JuS 1998, 121 ff .; Tobias Lettl, The commercial confirmation letter, JuS 2008, 849 ff.
  3. ↑ Peter Gauch: On the constitutive effect of the commercial letter of confirmation (PDF; 220 kB) In: Swiss Journal for Business Law . Pp. 177 ff. 1991. Archived from the original on October 12, 2013.
  4. ↑ BGHZ 54, 236 , 239
  5. ↑ Hans Brox / Wolf-Dietrich Walker, General Part of the BGB , 33rd Edition 2009, No. 197
  6. ↑ BGHZ 40, 42 ff.
  7. ↑ BGHZ 54, 236 , 239 f.
  8. ↑ BGH NJW-RR 2001, 680 , 681
  9. ^ Hans-Werner Eckert: Commercial Code Comment . Ed .: Detlev Joost / Lutz Strohn. 3. Edition. EBJS / Eckert HGB § 362 Rn. 7-10, beck-online. Munich 2015, ISBN 3-8006-5682-5 .
  10. ↑ Karsten Schmidt, Commercial Law , Section 19 II 2 d)
  11. ↑ Karsten Schmidt, Commercial Law , § 20 I 3 d)
  12. ↑ BGE 114 II 250 . Swiss Federal Supreme Court . October 27, 1988.