The colloquial use of the term of the customer more comprehensive than the law . Colloquially, the buyers in the sales contract (“ order ”), the clients of brokers , architects or commission agents also come into consideration as clients . In the credit system is in the payment process of the payer (with transfers ) or the payee (for debits hereinafter) from database view as a client, as in all bound by instructions banking transactions (such as when credit ). In the case of lawyers or tax consultants , the clients are called clients .
The client distinguishes himself from the buyer in that the client does not receive the service from the contractor immediately after placing the order , but only after several weeks or even months. The reason for this is that the contractor first has to create the service because it is not storable ( building ), has very individual (order-related) features ( work of art ) or a storage risk that is too high ( large industrial plants ). The seller , however, delivers step by step against payment by the buyer. Therefore , contract relationships are not based on sales law , but rather work contract , work delivery contract or service contract law.
The basis is the order placed by the client. For the order, it is essential for the contractor to act in the interests of another (the client). The contractor must therefore strictly adhere to the order-related instructions of the client when executing the order.
The right to order is regulated in §§ 662 to 674 BGB . The contractor is called the “agent” there. In accordance with German Civil Code (BGB), by accepting the order, the customer undertakes to take care of the business transferred to him by the customer free of charge, although he is generally not allowed to transfer the execution to third parties ( BGB). The contractor is obliged to provide information and accountability ( BGB), the client must, on request, make an advance payment for the expenses incurred by the contractor ( BGB), in addition he has to reimburse the contractor for the expenses incurred ( BGB). However, free of charge is not a mere unilateral courtesy on the part of the contractor, because a real obligation contract according to (1) BGB is concluded. The client is obliged to a reasonable extent to safeguard the interests of the contractor in protecting him from avoidable damage . If the transfer of the order from the contractor to third parties is permitted, this can in particular take place in accordance with Section 664 Paragraph 1 Clause and 2 BGB, according to which the third party takes over the order in whole or in part on its own responsibility . The agent has to exercise the care required in the traffic when executing the order.
As soon as the client promises remuneration , it is a management contract (§ , Paragraph 1 or BGB). The actually free order law can be applied analogously to paid orders (for the agency contract by reference in § 675 paragraph 1 BGB). In contract law, the contractor is called " entrepreneur ". Similar to the Sales Law - where according to BGB, the seller to transfer the burden of proof shall ensure the absence of defects of the purchased item - takes in contracts for work the contractor until the acceptance ( BGB), the burden of proving the absence of defects . According to (1) of the German Civil Code (BGB), the contractor's claim for remuneration only becomes due when the work has been accepted by the client. Acceptance is the acceptance of the service provided by the contractor through transfer of ownership and the declaration that the client recognizes the service as being in accordance with the contract. The similarly classified building acceptance is regulated in the state building regulations.
Depending on the type of economic entity, a distinction is made between private clients ( private households , companies and other associations of persons ) and public clients (the state and public administration , public companies and municipal companies ). As a business come from private clients business-to-consumer , consumer-to-business and business-to-business and public-sector clients Consumer-to-administration and business-to-administration before and vice versa. Both types of clients conclude contracts for which the public procurement law must be observed.
The law of the client is regulated in Switzerland in a similar way to that in Germany (Art. 394 ff. OR ), but also for a fee and also includes employment contracts . In Austria , too, Sections 1014 ff. ABGB provide for similar regulations. According to § 1004 ABGB in conjunction with § 1014 ABGB, the client is obliged to pay the agreed or statutory fee to agents. According to § 1020 ABGB the client can revoke the order "at will". The death of the client or agent usually ends the order (§ 1022 ABGB).
- Otto Palandt / Hartwig Sprau, BGB Commentary , 73rd edition, 2014, introduction before Section 662, marginal no. 2
- Kurt Schellhammer, law of obligations according to the basis of claims: including BGB General Part , 2014, p. 354
- BGHZ 16, 265, 267
- BGB-RGRK, The Civil Code , Volume 2 / Part 4, 1978, § 664 Rn. 2
- BGHZ 30, 40, 46
- Kurt Schellhammer, Law of Obligations according to the Basis of Claims: including BGB General Part , 2014, p. 355
- BGH, judgment of October 23, 2008 - VII ZR 64/07
- Hans-Joachim Tiete, Legal Lexicon for Crafts Enterprises , 1983, p. 9