Telephone contract
A telephone contract is usually a combination of different types of civil law contracts. Depending on the agreed services of the telephone provider and customer, different types of contracts and different performance obligations arise.
Telephone contracts are counted as mass business in the industrialized nations . For 2006, the number of telephone and cellular connections, and thus telephone contracts, was estimated at around 4 billion worldwide, with strong growth in China being expected. In Germany alone, around 45 million landline connections were provided by German telecommunications companies in 2007.
From a legal point of view, the prevailing legal opinion is that a telephone contract is a complex combination of rent and work contract . If the telephone provider also provides the customer with a device, there is also a purchase contract . If the telephone provider also bills telephone charges for other telephone providers, such as with the call-by-call procedure, a service contract is also concluded with the customer .
As a rule, different people are involved in the provision of services when looking at the overall picture. On the one hand, there are legal relationships between the customer and the telephone provider; on the other hand, the telephone provider must stock up on services from another network operator and / or telephone provider. From the consumer's point of view, only the contractual relationship between the customer and the telephone provider is important, since the customer is entitled to the performance of the telephone contract from his telephone provider.
The regulations on the telephone contract are applicable to every technical implementation. Accordingly, the following statements apply to landline connections , cell phone contracts , DSL Internet connections and Voice over IP connections.
Obligations of the telephone provider towards the customer
Activation of the telephone connection
Activating the telephone connection does not constitute an additional contract. Activation is a prerequisite for the accessibility of the connection. The availability of the telephone connection is subject to rental contract law, see below.
Thus, the activation is part of the obligations to fulfill the rental contract, and thus not an independent part of the contract. However, an additional remuneration is almost always agreed between the telephone provider and the customer by means of a general terms and conditions clause.
Accessibility of the telephone connection
First, the telephone provider undertakes to provide the customer with physical access to the telephone network and to enable the customer to access his connection. The availability of the customer is made possible by providing a telephone number, which the customer can now use. This leaves the customer with a telephone connection. When the telephone connection is provided, a rental agreement is concluded between the parties in accordance with Sections 535 ff. BGB closed.
The availability of the customer for incoming calls is thus measured according to tenancy law. The monthly rent is usually stated as a basic fee in the invoice in the invoice .
Outgoing customer calls
If the customer makes phone calls himself, an additional service is provided in addition to providing the telephone line for use. The telephone charges incurred when making calls are subject to the provisions of the law on work contracts. The regulation on the contract for work in accordance with §§ 631 ff. BGB.
When dialing a number (outgoing call), the telephone provider owes its customer a success, namely the establishment of a connection to the dialed connection. The debt of a concrete success defines the applicability of the law on contracts for work and services.
An additional work contract is created for each successfully selected connection. Accordingly, the customer owes his telephone provider to pay the fees incurred on the connection in accordance with the price list included in the telephone contract.
Agreement of a telephone flat rate
If a telephone flat rate is agreed, it must first be determined which types of telephone calls the flat rate (so-called flat rate ) relates to.
The following telephone flat rates are currently offered:
- Flat rate for connections for the fixed network
- Flat rate for connections to all / individual cell phone networks
- Flat rate for connections to certain countries in Europe / outside Europe
In principle, the legal classification of telephone flat rates is independent of the agreed scope of the flat-rate charges. In principle, the agreed remuneration is that all calls for the agreed connections are remunerated at a flat rate. This corresponds to the agreed remuneration according to § 631 I BGB.
Provision of a subsidized device
If the telephone provider provides Voice over IP telephone connection or a DSL Internet line , the use of special hardware such as routers and splitters is necessary. In the context of the telephone contract , a purchase contract in accordance with Sections 433 ff. BGB closed. The hardware is regularly transferred under retention of title . The telephone provider will only procure ownership after the contractually agreed contract period. In addition, the transfer of ownership is tied to the condition that the customer has fully met his payment obligation in the contract period. In contrast, the customer receives the hardware at a reduced price or free of charge, whereby from an economic point of view the customer also pays for the hardware due to increased costs for the overall package.
This conditional purchase agreement gives both parties an advantage. The telephone provider can only provide the telephone connection to its customers by providing the hardware. After the contract period has expired, the customer has the hardware at his free disposal, as it ultimately becomes his property .
In the same way, a subsidized cell phone is made available as part of a cell phone contract and transferred to the customer at the end of the contract.
Billing of telephone charges from other telephone providers
The customer's telephone provider also regularly bills the telephone charges that other telephone providers charge the customer. The reason for this billing of third party telephone charges may be that
- the customer uses the call-by-call procedure,
- the customer telephoned in domestic foreign networks (mobile network, foreign landline network)
- the customer made calls abroad (foreign mobile or landline network).
In this respect, the own telephone provider renders a service with his billing to the customer , which according to the legal rules on the service contract according to. §§ 611 ff. BGB determined. According to the civil law principle of freedom of contract , the telephone provider can decide whether he wants to provide this service. However, he is subject pursuant to § 15 Telecommunications Customer Protection Ordinance an obligation to contract . According to this, the telephone provider has the legal obligation to prepare such a total invoice for its customer.
Obligations of the customer towards his telephone provider
As a rule, the main obligation of the customer is limited to the payment of the billed services. According to general civil law, the contractual relationship results in secondary contractual obligations , such as protective obligations and the obligation to be faithful to performance.
history
Until the end of the monopoly of Deutsche Bundespost and Deutsche Telekom at the end of 1997, the essential rights and obligations of Telekom and customer were not anchored in the contract, but in the Telecommunications Ordinance (TKV).
In the past, the administrative board of the Deutsche Bundespost also decided on telephone charges in the Federal Republic of Germany.