Why shouldn't online consumers want regulations?

Federal Ministry of Justice and Consumer Protection

Today we conveniently order goods or services over the Internet. Apps were developed, websites made “mobile-ready”, which means that many companies offer their customers the option of buying via smartphone or tablet. However, when ordering online, you should consider some special features.

Whether it's the new computer, a book or a handyman - we can do most things quickly and easily over the Internet today. We use computers, smartphones or tablets for this, because many providers have already made their websites "responsive", that is, made them "accessible" for a wide variety of end devices. This means that purchases and orders are possible from anywhere - and so do justice to our user behavior. But in addition to the many advantages that the Internet offers us, you as a consumer should also keep an eye on the specifics when buying goods or using services. Companies that sell their goods exclusively via the Internet or telephone have to comply with different regulations than when they do so in stores. Because the rules of distance selling apply to them.

What is a distance selling business?

Mr. Meier would like to buy a new suit. Since he works long hours, going into town is too time-consuming for him. Therefore, he would like to order a suit in the online shop of a well-known men's outfitter. Mr. Meier finds what he is looking for - and puts the selected item in the shopping cart. With one click on the order button, he completes the order.

In the case of a distance selling transaction, a contract for the purchase of goods or the provision of services is concluded exclusively by means of means of distance communication. These include e-mail, fax, SMS, telephone, letter, online orders or the mail order catalog. It is crucial that the two contracting parties are not physically present at the same time. The customer does not see the goods before completing the purchase. The legislature has therefore formulated certain provisions under Sections 312c to 312k of the German Civil Code (BGB), which are intended to protect consumers in the area of ​​distance selling.

However, there are exceptions for certain contracts concluded via distance selling. Many protective regulations do not apply to contracts for package tours, passenger transport, construction and land contracts, treatment contracts for medical services and other cases listed in Section 312 (2) of the German Civil Code.

Information requirements

In the case of distance selling, the entrepreneur must adhere to certain information requirements. These are listed in Section 246a of the Introductory Act to the German Civil Code (EGBGB). For example, he must provide information about:

  • the essential characteristics of the goods or services,
  • the information about the identity of the entrepreneur (name of the company, address, telephone number, fax or email if applicable),
  • the total price of the goods or services, including all duties, taxes and additional costs, such as freight, delivery or shipping costs (if the exact price cannot be calculated in advance, the entrepreneur must notify the type of price calculation),
  • the terms of payment, delivery and service as well as the delivery date,
  • the statutory warranty rights and possible guarantees,
  • in the case of long-term contracts, the term of the contract or the terms of termination,
  • the instruction about a possibly existing right of withdrawal and the consequences associated with the withdrawal.

The entrepreneur must provide you with the information before concluding the contract - in a "manner adapted to the means of distance communication used". When ordering on the Internet, for example, he fulfills his duties if the information is displayed on the company's website. An oral declaration is sufficient for orders placed over the phone.

After the conclusion of the contract, the entrepreneur must make the information available to you again on a permanent data carrier (paper, CD-ROM or e-mail). He must do this at the latest by the time the goods are delivered or the service is provided.
If the entrepreneur violates these obligations, he cannot demand freight, delivery, shipping or other additional costs from you.

Special protection for e-commerce

When purchasing apps or placing orders in the online shop, additional special features apply to protect consumers. Wrong entries can easily be made here. Therefore, the entrepreneur has to design the order process in such a way that errors can be noticed in good time - and corrected.

The customer must be able to call up and save the basics of the contract and the general terms and conditions (GTC) when the contract is concluded.

Pre-set ticks for additional services such as seat booking or chargeable meals are not permitted. These must be selected by the customer.

The entrepreneur must convey particularly important information to the customer in a prominent, clear and understandable manner and before placing the order. This information may not be in the small print, nor may it be hidden behind a link.

Orders are usually completed by clicking on a corresponding order button (a button). Since a binding order is created by clicking on it, the button must be clearly labeled. The customer must be aware that he wants to conclude a contract in which he enters into payment obligations and does not get anything for free.

In the men's outfitter's online shop, Mr. Meier has provided all the information in the shopping cart. At the bottom right is a big blue button that says “Next”. Assuming that he will now be shown all the inputs again for checking purposes, Mr. Meier clicks on the button. Suddenly a window opens: "Thank you, you have just sent your order."

Buttons with insufficient lettering such as “order”, “register” or “continue” are not sufficient for a binding order. A contract is only concluded if the label on the order button clearly indicates that the order is subject to payment (e.g. "order subject to payment", "conclude a contract subject to payment" or "buy").

After completing the order, the entrepreneur must confirm the order to the customer.

Right of withdrawal

If you have concluded a distance selling contract, you as a consumer have a right of withdrawal according to §§ 312g, 355 BGB. If you do not like the goods sent or if you do not want to adhere to the contract for other reasons, you can revoke your declaration of contract conclusion within 14 days. The period begins with the receipt of the goods and, in the case of services, with the conclusion of the contract. In the case of regular deliveries such as newspaper subscriptions, the period begins with the dispatch of the first goods.

How do I declare my withdrawal?

You must clearly explain the revocation to the entrepreneur. There is no need for substantiation. Your declaration is also not subject to any specific form. A telephone declaration to the entrepreneur is therefore also effective. However, for reasons of evidence, you should submit a declaration of cancellation in text form. In this way you can later prove that you declared your revocation in good time. You can find a suitable cancellation form on the website of the Federal Ministry of Justice and Consumer Protection (BMJV).

If the entrepreneur has not informed you about your right of withdrawal, or has given you incorrect information (on information requirements, see above), you can declare your withdrawal within twelve months and 14 days. Thereafter, a revocation is ineffective.

What are the consequences of a withdrawal?

If you have revoked the conclusion of the contract or your declaration about it in due time, the services received must be returned within 14 days. If your contract relates to financial services, a period of 30 days applies. You must return the goods received to the entrepreneur, and the entrepreneur must reimburse you for the purchase price paid upon receipt. If the goods are damaged in transit, the entrepreneur still has to pay. Because he bears the risk for the return, unless you are responsible for the damage yourself, e.g. due to inadequate packaging.

The entrepreneur can impose the costs for the return on you. However, large mail-order companies usually allow free returns.

Please also note that you may have to pay compensation to the entrepreneur if the goods have lost value during the time they were in your care. You should therefore always handle the goods carefully in the event that you want to return them.

The following applies to services: if services have already been provided up to the point in time of the revocation, you owe the entrepreneur compensation for them. But, here too it is crucial that the entrepreneur must inform you in advance about the obligation to pay compensation.

Exceptions to the right of withdrawal

Mr. Meier's suit is made to measure. After specifying the chest, waist and hips as well as arm and leg length, he wants to buy the suit. Before completing the order, he reads the terms and conditions of the online shop. Under the item "Exchange, return and right of withdrawal" it says: "In the case of tailor-made suits, you have no right of withdrawal according to Section 312g (2) No. 1 BGB". Mr. Meier asks himself whether this is legal.

With some contractual objects, a revocation would not be appropriate. Therefore, the law (in addition to the above-mentioned exceptions from distance selling) in Section 312g (2) BGB lists further exceptions in which there is no right of withdrawal. This includes, for example, goods that are not suitable for return for hygienic reasons, as well as sealed CDs or DVDs. And there is also no right of withdrawal for custom-made items such as Mr. Meier's suit.

Special features for streaming and download

If digital content such as music, film titles, e-books or apps are downloaded, the entrepreneur must also explain how it works and how it can be used. Because before you download an app, you should know whether it is compatible with your smartphone or tablet at all. He must also inform you about the applicable technical protective devices (e.g. copy protection).

In the case of downloading and streaming, you also have a fundamental right of withdrawal. However, so that digital content is not used and subsequently revoked as often as required, the legislature has included in Section 356 (5) BGB when a right of revocation expires. Namely when you start downloading and before:

  1. expressly consented to the execution of the contract before the expiry of the withdrawal period and

  2. have confirmed that you will lose your right of withdrawal by agreeing to the start of execution.

Photo: Thinkstock / iStock

Further information

additional Information

Legal and Law

  • BGB § 312e
  • Breach of information obligations about costs
  • BGB § 355
  • Right of withdrawal for consumer contracts
  • BGB § 356
  • Right of withdrawal for contracts concluded outside of business premises and distance contracts

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