Revocation (right)

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The revocation means a design right of the consumer , after the exercise of consumers and entrepreneurs to their on the conclusion of a consumer contract -related declarations of intent are no longer bound.

General

Withdrawal is an exception to the principle pacta sunt servanda , according to which contracts must be fulfilled by both sides. In contrast to, for example, contestation due to error , incorrect transmission , deception or threat (§ § 119 ff. BGB ), the revocation enables a solution to the contract without an objective reason.

The right of cancellation requires the entrepreneur to provide the consumer with cancellation policy before a contract is concluded between both parties.

The right of withdrawal for consumer contracts is standardized in § 355 BGB et seq., Most recently changed extensively with effect from June 13, 2014 by Art. 1 and 2 of the Act to Implement the Consumer Rights Directive and to amend the Act to regulate housing brokerage with the EU Consumer Rights Directive was implemented.

The withdrawal must be distinguished from the withdrawal , although the legal consequences are similar. The consumer can thus withdraw from the contract even after the statutory withdrawal period has expired if the relevant reasons exist.

Existence of the right of withdrawal

Consumer property

A consumer within the meaning of Section 13 of the German Civil Code (BGB) can only be a natural person who concludes a legal transaction, for example a purchase contract, which is not primarily attributable to their commercial or independent professional activity, but to private needs. Entrepreneur according to Section 14 (1) of the German Civil Code (BGB), on the other hand, applies to anyone who, when concluding a legal transaction, is exercising their commercial or independent professional activity.

Scope of application § 355 BGB

For reasons of consumer protection, § 355 BGB grantsa consumer, e.g. B. a buyer, towards an entrepreneur, e.g. B. a mail order company, with certain contracts a right of revocation. The right of revocation of § 355 BGB applies by law to contracts concluded outside of business premises and to distance contracts ( § 312g Paragraph 1 BGB).

In the cases specified by Section 312g (2) BGB, there is no general right of revocation unless the contracting parties have expressly agreed to such a right. Some cases act as grounds for exclusion and do not even allow the right of withdrawal to arise. Other cases require certain actions by the recipient of the service and thus invalidate any existing right of withdrawal. For example, there is basically no right of withdrawal for the delivery of perishable goods (exclusion). Contracts for the delivery of audio or video recordings can, however, be revoked unless an existing seal on the goods has been removed (expiry). In addition, according to Section 356, the right of withdrawal for contracts for the delivery of data through direct data transfer can expire.

Other legal provisions ( consumer loan agreement in accordance with Section 495 of the German Civil Code or in accordance with Section 305 of the Capital Investment Code ( Section 312g (3) of the German Civil Code)) grant the consumer a right of withdrawal in accordance with Section 355 of the German Civil Code with partially different deadlines. Then any rights of withdrawal from § 212g withdraw, so the consumer only receives a right of withdrawal once.

Withdrawal period

In order to become effective, the revocation must be exercised within the revocation period. Sending the cancellation before the deadline expires is sufficient to meet the cancellation deadline .

The cancellation period is a uniform 14 days and begins at the earliest when the consumer has received effective cancellation policy , but not before the recipient has received the goods for distance selling according to Section 356 (2) BGB. In the case of distance selling, it also applies that, in the case of recurring deliveries of similar goods, it begins with the receipt of the first partial delivery, but in the case of different goods in an order, it begins with the receipt of the last partial delivery.

In addition, according to Section 187 of the German Civil Code (BGB), a period only begins on the following day and, in the case of Sundays, public holidays or Saturdays, according to Section 193 of the German Civil Code, on the following working day . Example:

A consumer orders two unrelated goods on a Tuesday and receives the cancellation policy by email on the same day. The first item can be delivered immediately and will reach the consumer on Wednesday, while the second item will not arrive until Saturday. The first period now begins on Thursday and the second period begins on the following Monday (working day), as the second delivery did not arrive until Saturday and the following day would have been a Sunday. (In the case of related goods, e.g. a kitchen that belongs together, the period does not begin until the following working day of the last partial delivery)

In the case of contracts concluded in online trading , for example time-controlled as with the provider eBay , cancellation instructions immediately after the conclusion of the contract is equivalent to such before the conclusion of the contract and therefore allows a cancellation period of 14 days. The requirement for an 'immediate' transmission of this instruction is not clearly regulated. However, a maximum of 24 hours is generally considered sufficient. However, particularly when using automated systems to process incoming orders / purchases, the dealer must ensure that the cancellation policy is correctly sent as part of this automatic response.

On eBay, however, it is still unclear when a contract will be concluded: In a procedure for issuing an interim injunction, the Dortmund Regional Court followed the view of an applicant that a contract would be concluded when the first bid was submitted. Thus, a cancellation policy, which occurs shortly after the end of the auction, but nevertheless considerably after the first bid has been submitted, would be too late. However, the view of the Dortmund Regional Court cannot be found in other courts that only recognize the conclusion of the contract at the end of the auction. At the same time, the Federal Court of Justice has not yet made a clear assessment.

Until the right of withdrawal is exercised or the right of withdrawal expires due to the expiry of the deadline, the contract is in a pending state, which can be described with the words " pending effect ": It is deemed to be effective, although this is subject to the fact that the contract can be terminated at any time by exercising the Right of withdrawal can go under.

The entrepreneur bears the burden of proof for the start of the withdrawal period ( Section 361 (3) BGB).

The consumer's right of withdrawal expires no later than 12 months and 14 days from receipt of the goods (in distance selling) or after the conclusion of the contract ( Section 356 (3) sentence 2 BGB), even if the entrepreneur has not instructed the consumer about the right of withdrawal.

Declaration of revocation

According to Section 355 of the German Civil Code (BGB), the revocation does not require any justification, but must be made by means of a declaration of revocation clearly indicating the consumer's decision to revoke the contract. It is not necessary to adhere to the text form , but simply returning the goods without a declaration of revocation is not sufficient. The legislator provides a model withdrawal form that the entrepreneur sends to the consumer ( Art. 264a § 1 Paragraph 2 No. 1 EGBGB, § 312d Paragraph 1 BGB) and the receipt of which he must confirm to the consumer after exercising the right of withdrawal ( Section 356 (1) sentence 2 BGB).

The burden of proof for exercising the right of withdrawal lies with the consumer.

Partial revocation

In the case of contracts for an objectively divisible service, for example when ordering several items at the same time, the revocation according to the Distance Selling Act may also be limited to part of the order. It has not yet been clarified whether this case law can be transferred to the legal situation that has been in force since June 13, 2014, but is desirable in the interests of consumer protection and is generally accepted by retailers.

Legal consequences of revocation

The legal consequences of the revocation result from § 357 BGB: If the consumer effectively exercises his right of revocation, he and the entrepreneur are no longer bound by their declarations of intent aimed at concluding the contract , so that no effective contract is concluded.

The services received (goods and purchase price) must be returned no later than 14 days after receipt of the revocation. In the case of a purchase of consumer goods , the entrepreneur has the right to withhold the repayment until he has received the goods back or the consumer has provided evidence that he has dispatched the goods.

Regardless of the value of the goods, the consumer (only) bears the direct costs of the return if the entrepreneur has informed him about this. The € 40 clause in accordance with Section 357 (2) of the old version of the German Civil Code (BGB), which was valid before June 13, 2014, has been abolished. The entrepreneur can at any time, also in his terms and conditions or z. B. after receipt of the consignment, agree to bear the return costs. If the goods that cannot be sent as parcels have been delivered to the consumer's home (e.g. furniture or large household appliances), the entrepreneur is obliged to collect the goods at his own expense in the case of contracts concluded outside of business premises ( Section 357 (6) BGB). In the case of distance sales contracts (such as in the Internet mail order business), however, Section 357 (6) BGB does not apply.

Has the entrepreneur duly and comprehensively instructed the consumer about the conditions, the deadlines and the procedure for exercising the right of withdrawal according to Section 355 (1) of the German Civil Code (BGB) and the model withdrawal form in Appendix 2 (Art. 246a, Section 1, Paragraph 2, Clause 1 no. 1 BGB), he can pay compensation require the consumer when a loss in value has occurred to the goods. For this, the consumer behavior must have gone beyond what is necessary to check the quality, properties and functioning of the goods ( Section 357 (7) BGB). At home, however, the consumer can do everything possible to test whether the goods fit and function. B. Tear open packages, assemble delivered furniture or connect hardware to his computer. This also applies if the inspection makes the goods practically unusable for the entrepreneur because he can no longer resell them as new in this condition.

However, the consumer may not use or damage the goods beyond what is required for the goods inspection, so that they can only be sold to the entrepreneur at a discount or not at all.

The European Court of Justice had already rejected a general obligation to pay compensation in 2009.

Since the claim to compensation is practically difficult to enforce for the entrepreneur, corresponding losses are regularly factored into the price of the goods from the outset.

Right of return until June 2014

In certain cases, until the law was changed in June 2014, the entrepreneur was able to grant the customer a right of return instead of the right of withdrawal , namely when concluding contracts on the basis of a sales prospectus. The sales prospectus ( catalog , direct mail , internet catalog ) had to contain clearly structured instructions on the right of return. It could only be exercised from receipt of the goods within the 14-day withdrawal period by returning the goods. If the instruction was only communicated after the contract was concluded, the cancellation period was one month. If the consumer was not at all or not properly instructed about his right of withdrawal, the right of withdrawal was not limited in time. If the purchase price for the goods was less than 40 euros, the consumer had to bear the costs of returning the goods.

As of June 13, 2014 the right of return no longer applies.

literature

  • Harald Brennecke, Monika Dibbelt, Pascal Schöning: The right of withdrawal . Verlag Mittelstand und Recht, 2016. ISBN 978-3-939384-56-4

Web links

Individual evidence

  1. ↑ Brigitta Lurger: withdrawal rights (PDF) University of Graz , 2014
  2. ↑ BGBl. 2013 I p. 3642 (PDF)
  3. ^ Regional Court of Dortmund, decision of April 7, 2011–2020 O 19/11 - at the Justiz NRW
  4. ↑ Overview of previous opinions, law firm Ferner
  5. ↑ Appendix 2 (to Article 246a § 1 Paragraph 2 Clause 1 Number 1 and § 2 Paragraph 2 Number 2) Model for the withdrawal form
  6. ^ AG Wittmund, judgment of March 13, 2008 - 4 C 661/07
  7. ↑ MünchKomm-Ulmer, § 355 Rn. 21; Wildemann-jurisPK-BGB, § 355 BGB margin no. 20th
  8. ↑ Phil Salewski: The partial revocation in distance selling according to the new consumer law: possible or impossible? 3rd February 2016
  9. ↑ so already ECJ, judgment of April 15, 2010 - C ‑ 511/08
  10. ↑ § 357 BGB - single standard. Retrieved August 8, 2019 .
  11. ↑ Amendment to § 357 BGB dated June 13, 2014 § 357 BGB old version in the version valid before June 13, 2014, buzer.de
  12. ↑ BGH, judgment of November 3, 2010 - VIII ZR 337/09
  13. ↑ Kathleen Kunst: Reversal and payment of costs after revocation April 17, 2014
  14. ↑ Tanya Stariradeff: When can you demand compensation from the customer? October 27, 2016
  15. ^ Judgment of September 3, 2009 - C 489/07
  16. ↑ Markus Timm: Eternal suffering with the cancellation policy ( Memento from April 29, 2010 in the Internet Archive )
  17. ↑ Marzena Sicking: Right of return in mail order business: Try it out without compensation on November 4, 2010
  18. ^ Tabea Franz: Exchange, warranty and right of return ( Memento from November 4, 2009 in the Internet Archive ). eKritik.de
  19. ↑ Section 356 (1) BGB in the version that was valid before June 13, 2014 buzer.de, accessed on March 9, 2017
  20. ↑ Cancellation of contracts (PDF) IHK Arnsberg, Hellweg-Sauerland, accessed on March 9, 2017