Doorstep selling
The door business is a legal term contracts concluded in certain situations, mainly in a representative visit (see direct sales , the travel industry , sales representatives , traveler and peddler ) or on a coffee ride . In Germany, the term is now considered out of date, it is still used in the Swiss Code of Obligations .
European Law
The Consumer Protection in Doorstep Selling was first at European level in the Council Directive 85/577 / EEC of 20 December 1985 to protect the consumer in the case of off-premises contracts regulated.
In the recitals to the so-called Doorstep Selling Directive it said:
“Contracts that are concluded outside the business premises of a trader are characterized by the fact that the initiative for the contract negotiations usually comes from the trader and the consumer is not prepared for the contract negotiations. The reason for the special consumer protection in this case is that many door-to-door sales are characterized by a certain surprise effect: the customer closes the deal without sufficient consideration, especially without price comparisons, often to do the agent a favor or to get rid of him. The customer should be protected from such transactions. The latter often has no way of comparing the quality and price of the offer with other offers. This element of surprise does not only exist in door-to-door sales, but also in other contracts that are concluded on the initiative of the trader outside his business premises. In order to give the consumer the opportunity to reconsider the obligations under the contract, he should be given the right to withdraw from the contract within at least seven days. It is also necessary to take suitable measures to ensure that the consumer is informed in writing of his deliberation period. "
Different regulations in the member states should also be standardized in the interests of a functioning common market.
The Distance Selling Directive of May 20, 1997 provided for an approximation of the legal and administrative provisions of the member states on the conclusion of contracts in distance selling between consumers and suppliers.
Germany
Legal situation until 2014
In German law , Section 312 of the German Civil Code (BGB) (old version) defined door-to-door sales as a contract between an entrepreneur and a consumer , the subject of which is a paid service and which the consumer concludes
- through verbal negotiations at his workplace or in the area of a private home,
- on the occasion of a leisure event organized by the entrepreneur or a third party, at least in the interests of the entrepreneur, or
- following a surprising response in means of transport or in the area of publicly accessible traffic areas
has been determined.
In the case of door-to-door sales, the consumer was entitled, subject to special regulations, to a right of withdrawal in accordance with Section 355 of the German Civil Code. Instead, the entrepreneur was able to grant the consumer a right of return in accordance with Section 356 of the German Civil Code. The entrepreneur had to instruct the consumer about these rights (Section 312 (2) BGB old version).
The right of withdrawal or return existed according to Section 312 (3) BGB old version does not apply to insurance contracts or if
- the oral negotiations on which the conclusion of the contract was based had been conducted at the prior order of the consumer or
- the service was provided and paid for immediately upon conclusion of the negotiations and the fee did not exceed 40 euros or
- the consumer's declaration of intent was certified by a notary .
Legal situation since the reform of consumer law in 2014
With the EU Consumer Rights Directive of October 25, 2011, the Doorstep Selling Directive and the Distance Selling Directive were repealed and consumer law was fundamentally reformed.
With the law for the implementation of the consumer rights directive and for the amendment of the law regulating the housing brokerage of September 20, 2013, with effect from June 13, 2014 u. a. the term "doorstep selling" in the former section 312 of the German Civil Code (BGB) has been deleted. Now the law speaks in § 312b of the German Civil Code (BGB) of " contracts concluded outside of business premises ". This conceptual change also includes an expansion of the scope of the regulations. Whereas previously it was necessary to use defined locations such as private apartments or public transport as a starting point for accepting “doorstep selling”, the statutory regulation now defines all locations “outside of business premises” of the entrepreneur as a prerequisite - a significant local expansion. However, contracts that are concluded on the entrepreneur's business premises are also affected, namely if the consumer was previously addressed personally outside the business premises. Excursions ("coffee trips") are now also expressly included in the scope.
The previous exceptions in the previous paragraph 3 of § 312 BGB have been deleted. Rather, in Section 312g (2) of the German Civil Code (BGB), exceptions for all options for consumer contracts have been revised. For “door-to-door sales”, the exception in no. 11 is essential. Here only "contracts in which the consumer has expressly asked the entrepreneur to visit him in order to carry out urgent repair or maintenance work" are excluded from the right of withdrawal - and only for the services previously requested. This means that contrary to the previous regulation, contracts can now also be revoked if the consumer had previously appointed a representative.
The legal consequence of this regulation is that the consumer is entitled to a right of withdrawal in accordance with Section 312g (1) of the German Civil Code (BGB) in accordance with Section 355 of the German Civil Code (BGB). The consumer can revoke the contract within 14 days of the conclusion of the contract by giving the entrepreneur a declaration without giving reasons. Services received are to be returned.
Switzerland
The legal situation in Switzerland is regulated by OR , Art. 40a – 40g. The regulation is similar to that of Germany. A right of withdrawal exists for door-to-door sales, for products offered in means of transport and for coffee trips. The articles are not valid for insurance contracts and if the purchase price falls below CHF 100 , if the customer has ordered the representative himself, has concluded the contract at a trade fair or if the customer is trading the goods commercially.
See also
Web links
Individual evidence
- ↑ Directive 85/577 / EEC
- ↑ Bettina Heiderhoff: Doorstep Selling HWB EuP 2009, accessed on November 10, 2019
- ↑ Directive 97/7 / EC
- ↑ § 312 BGB in the version valid before June 13, 2014 buzer.de, accessed on November 10, 2019
- ↑ Draft of a law to implement the consumer rights directive and to amend the law regulating housing brokerage BT-Drs. 17/12637 of March 6, 2013
- ↑ Katharina Hilbig-Lugani: Innovations in the off-premises and distance selling right of withdrawal - Part 1 ZJS 2013, pp. 441–452
- ↑ Katharina Hilbig-Lugani: Innovations in the off-premises and distance selling right of withdrawal - Part 2 ZJS 2013, pp. 545–551
- ↑ Federal Law Gazette I p. 3642
