Beer supply contract
The beer delivery contract (also beverage purchase contract ) is a mixed contract for the delivery of beer and other beverages between a brewery and an innkeeper as part of a continuing obligation .
General
The breweries have several sales channels , such as wholesale , retail , drinking halls , restaurants and beverage shops . In order to secure the beer and beverage sales, they developed the beer supply contract, which allows the freedom of contract .
Legal issues
The parties to the beer supply contract are breweries and innkeepers . It is a type of contract not mentioned in the BGB and contains elements of the purchase contract ( § 433 BGB; beer, other beverages), loan agreement ( § 598 ff. BGB; inventory such as drinking glasses , beer mats ), lease agreement ( § 581 ff. BGB; restaurant ), Loan contract ( § 488 BGB; financing ) and successive delivery contract (type, delivery time and minimum quantity of drinks). The literature also assumes that a loan to the brewery with the ongoing loss of beverages by the beer supply agreement repaid should be. According to the Nuremberg Higher Regional Court , beer supply contracts linked to loan contracts are intended by the contracting parties as a unit, whereby the creation of one contract is made dependent on the creation of the other. § 241 and § 377 HGB also apply .
In Bavaria it has even been codified under state law and has been mentioned in the “Law for the Implementation of the Civil Code (AGBGB)” since January 1900. If a contract for the delivery of beer is then concluded between a brewer and a landlord without specifying the amount of beer to be delivered, the subject matter of the contract is the entire demand for beer that arises in the landlord's business during the duration of the contractual relationship. The landlord is obliged to obtain the demand exclusively from the brewer, the brewer has to deliver the required quantities to the landlord (Art. 5 AGBGB). The special importance of the beer supply contract in Bavaria results, among other things, from the fact that many breweries there still supply the beer themselves ( direct sales ) instead of using the beverage wholesalers.
A beer delivery contract can violate morality and thus be null and void ( Section 138 (1) BGB) if it restricts the innkeeper's economic freedom of movement in an unacceptable manner and thus makes the innkeeper no longer dependent on the beliefs of honest business dealings Bring beer suppliers. Its duration plays a major role; Terms of 10 years are considered unproblematic under civil law, but under competition law in accordance with Section 2 (2) GWB in conjunction with Art. 101 (1) TFEU, purchase agreements of more than 5 years are ineffective.
Exclusivity bindings and the securing of this commitment by means of a contractual penalty are - measured against § § 305 ff. BGB - to be classified as effective under civil law. However, if the beer supplier has a dominant position in the market , exclusivity agreements may be prohibited under competition law due to § 19 , § 20 GWB. A beer supply contract that does not contribute significantly to market foreclosure - particularly with regard to its duration and the scope of the agreed exclusivity - is not covered by Art. 105 TFEU; It does not matter how many restaurants the brewery company has bound to itself through further beer supply contracts.
economic aspects
Beer supply contracts are questionable under competition law . From an entrepreneurial point of view, they reduce the beer supplier's sales risk , lead to higher customer loyalty and represent an insurmountable market entry barrier for delivery competitors. The innkeeper being supplied is faced with a monopoly in purchasing , which, however, ensures procurement security through a de facto delivery guarantee for a substantial part of the catering products.
Accounting treatment of beer delivery law
The brewery receives an exclusive right in the beer delivery contract ( beer delivery right ), which obliges the restaurant to only sell beer from this brewery for a contractually defined period ( beer purchase obligation ). In return, the brewery pays a one-off grant (often in the form of equipping the restaurant with inventory). This one-off grant is from the perspective of a brewery intangible asset . This is in the balance sheet to enable and over the term of the contract to write off . Accordingly, the grants must be passively delimited on the recipient side .
literature
- Martin Niklas: Beer: a special drink - also in German civil law. On the importance of the beer supply contract in the food and catering industry . Law (The Journal for European Food Law) 3/2014.
Individual evidence
- ↑ Burkhard Schmitt, The Bundle Theory of the European Court of Justice and its Consequences Using the Example of the British Beer Market , 1999, p. 4
- ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 240
- ^ Higher Regional Court Nuremberg, judgment of December 3, 1954, NJW 1955, 386
- ↑ Art. 5 and 6 AGBGB
- ^ BGH WM 1987, 542
- ↑ Cologne Higher Regional Court, judgment of October 20, 2011, Az .: 7 U 65/11
- ↑ BGH WM 1980, 1309 ff.
- ^ BGH, judgment of October 15, 1991, Az .: KZR 25/90 = BGH WM 1992, 117
- ↑ Bernhard Großfeld / Claus Luttermann, Accounting law: Accounting in annual financial statements and consolidated financial statements according to commercial law and tax law, European law and IAS / IFRS , 2005, p. 101 , ISBN 3811423487
- ↑ Rudolf Haufe Verlag (ed.), Lexicon Accounting , 2002, p. 16 , ISBN 3448049425
