Introduction to the

legal bases
of E-commerce
PRESENTATION
Definition of E-commerce
 Electronic business transactions
E-commerce
All contracts concluded by
means of software, e.g.
distance
selling contracts, internet
auctions, platforms, web 2.0,
communities, providers, etc.
IT-Contracts
All contracts relating to
Information Technologies, i.e.
Software,
Hardware and related services,
which can occur isolated or in
combination
Overview of legal sources of the German
E-commerce
General legal sources
The German Civil Code (BGB particularly
provisions to AGB §§ 305-310 BGB)
The German Commercial Code (HGB)
The German Criminal Code (StGB)
The German Copyright Law
The German Trade Regulation act (GewO)
The German law against unfair competition
Specific legal sources
The German Teleservices Act (§§ 5, 6, 16 TMG)
information obligations of the service provider
E-commerce and distance selling law (§§ 312 et
seq. BGB)
Art. 246 EGBGB information obligations
regarding distance selling contracts
The German Digital Signature Law (SigG),
framework conditions, § 126 a BGB
Price Qotes Regulation (§ 1 (2) PAngV), regulates
composition of the final price
The Act on the Implementation of the EU
Consumer Rights Directive (13.06.2014)
The Act on the Implementation of the EU Consumer Rights
Directive and on the Amendment of the Law on Housing
The law modifies:
 Art. 312 et seq. German Civil Code (BGB) (provisions
concerning contracts negotiated away from business premises,
distance contracts and contracts in electronic commerce)
 Art. 355 et seq. BGB (right of withdrawal)
 Art. 246 et seq. Introductory Law to the German Civil Code
(EGBGB) (consumer information obligations)
The applicable law in E-commerce
 E-commerce and the applicable law, cross border contracts (questions of private
international law)

Art. 27 Introductory Law

to the German Civil Code Party in Germany
Party in Poland (parties agreed to the law
of one country)

Art. 29 chocie of law may not circumvent domestic consumer protection law
Contract
(closely
connected)
Party, who
provides the Art. 28 Introductory Law to Party in Germany
performance, has the German Civil Code
it`s seat in Poland
Formation of the contract
Offer (declared by E-Mail
Contract (between Acceptance (declared by
or online order form)
absentees, § 130 E-Mail or mouse click)
Legally binding offer with
BGB)
chatrooms, online
sending off the order not by Auto-
conference system
by the customer responder reply,
confirmation

 § 130 (1) BGB, a declaration of intent becomes effective at the point of time when this
declaration reaches the absent person (For the receipt it is required that the addressee can
take note of the declaration)
 The presentation of goods (catalogue) or services on a homepage is not a legally binding
offer. Comparable with a shop window display it is an invitation to anyone to make an offer
(„invitatio ad offerendum“)
 An incorrect electronic declaration of intent may be avoided, §§ 119 et seq. BGB (e.g.
incorrect entry of an E-Mail, message sent by mistake, incorrect transmission) (use of
faulty soft-/hardware, incorrect data in data processing operation)
Ebay specifics (ricardo.de decision)
 Legally binding offer with publishing the product on the auction site

Seller (of a new car, listed

Buyer (highest bid 26350
price 57000 DM) opening
DM)
price 10 DM
ricardo.de
Online auction
Legally binding offer, Acceptance by the last
website
not an invitation bid and expiration
Formation of the contract on the internet
(form requirements)
 Exceptions: Contracts, which are subject to formal requirements by
law (written form, certification, notarial authorisation).
 Mandatory specified written form, § 126 BGB (e.g. credit
agreements for consumers, transfer of houses, guarantees).
 Substitute for the written form, § 126 a BGB, comparable with a
seal, if the requirements of the Digital Signature Law (SigG) are
fulfilled the qualified electronic form replaces the written form (§
126 a BGB).
 Problem: Electronic signatures are not popular among consumers.
What are distance selling contracts?

 According to § 312 c (1) BGB (§ 312 b (1) BGB) distance contracts are contracts
for which the entrepreneur, or a person acting in the entrepreneur’s name or on
his behalf, and the consumer exclusively avail themselves of means of distance
communication in negotiating and concluding the contract, except where the
conclusion of the contract does not take place in the context of a sales or service-
provision scheme organised for distance sales.
 Means of distance communication are all means of communication which can be
used to initiate or to conclude a contract, without requiring the simultaneous
physical presence of the parties to the contract, such as letters, catalogues,
telephone calls, faxes, emails, text messages sent via the mobile telephone
service (SMS) as well as messages broadcast and sent via teleservices (§ 312 c
(2) BGB).
The protective purpose of the distance
selling law
Consumer cannot:
1. inspect the goods
2. The characteristics of the goods cannot be explained by personnel of the
entrepreneur.

Against that the consumer should be protected by information duties, § 312 d (1)
BGB in conjunction with Art. 246 a EGBGB (§ 312 c in conjunction with Art. 246
§ 1 and 2 EGBGB) of the entrepreneur and by the right of withdrawal (§ 312 g in
conjunction with § 355 BGB).
Information requirements, distance sales
(§ 312d BGB, § 246a EGBGB)
E-commerce Regulation: Commercial websites must show:
 The company`s name
 Postal address (registered office) and email address
 Company`s registration number and tax number
 All prices, delivery costs must be clear and unambiguous
 „button“ function, „order with obligation to pay“ (§ 312 j (3) BGB)
Distance Selling Regulation:
 Main characteristics of the goods or services
 Arrangements for payment and delivery, contract confirmation
 Existance of the right of cancellation
 Information about statutory warranty rights
Right of withdrawal in distance selling
contracts
 § 312 g (1) BGB new version (formerly § 312 c BGB):
In the case of off-premises contracts and of distance contracts, the consumer has a
right of revocation/withdrawal pursuant to section 355.

Exceptions: The consumer has no right of withdrawal, unless otherwise agreed by

the parties (§ 312 g (2) BGB) when ordering:
 Goods that are clearly tailored to personal needs of the consumer
 Goods that could expire/spoil quickly (e.g. food)
 sealed audio or sealed video recordings or sealed computer software, if they were
unsealed after delivery
 Newspapers, magazines
Right of withdrawal (Art. 312 c in
conjunction with Art. 355 BGB)
 The length of withdrawal period depended on:

14 days 1 month
Entrepreneur Entrepreneur
informed consumer informed consumer
about right of about the right of
withdrawal before wirtdrawal only after
the conclusion of the conclusion of
contract contract
Beginning of the withdrawal period in
distance selling law
New regulation under § 312 g (1) BGB (new version)
in conjunction with § 355 BGB

Europe-wide uniform withdrawal period of 14 days

starts with conclusion of contract (§ 357 (1), § 355
(2) BGB)
 In the case of a sale of consumer goods the period starts as soon as the consumer has received
the goods (§ 356 (2) BGB).
 There is no more "eternal right of withdrawal“. The right of withdrawal shall expire at the latest
upon expiry of 12 months and 14 days after all criteria for the commencement of the withdrawal
period are met, even if the entrepreneur did not properly instruct the consumer about his/her right
of withdrawal.
Declaration of withdrawal by the
consumer
 As an alternative to the right of withdrawal, the right to
return, as laid down in § 312 d BGB has ceased to exist.
 Merely sending back the goods shall no longer be
sufficient, unless the parties have expressly agreed to it.
 The consumer must exercise his/her right of withdrawal
through an explicit declaration to the entrepreneur, giving
reasons for withdrawal is not required (§ 355 (1) BGB).
Obligation to provide for a withdrawal
form
 In addition to the obligation of the instruction on the right of withdrawal the
entrepreneur must provide a standard withdrawal form before submitting an
order, pursuant to § 312 d (1) BGB.
 The consumer can exercise the withdrawal by using the model withdrawal form
or e.g. telephone, E-Mail.
 The model instructions on withdrawal in Annex 1 and 2 of Article 246a Section
1 (2) Sentence 2 EGBGB have been adapted
 According to § 356 BGB the entrepreneur must provide the consumer with a
withdrawal form placed on the entrepreneur’s website, which the consumer can
complete and send back to the entrepreneur. The receipt of withdrawal must be
confirmed by the entrepreneur.
The consequences of withdrawal
 All goods and payments must now be returned within 14 days
after the consumer exercised his/her right of withdrawal (§ 357 (1)
BGB).
 The entrepreneur must bear sending costs (§ 357 (1) BGB), must
reimburse the regular delivery costs if the consumer exercises
his/her right of withdrawal.
 The consumer must bear the return shipment costs, independent
of the value of the item/goods, provided that he/she was properly
informed thereof (§ 357 (6) BGB, Art. 246a EGBGB). The 40 Euro
mark has ceased to exist.
 Costs of transportation. The consumer shall only have to bear costs
of transportation if he/she was properly informed thereof before
declaring his/her contractual statement.
Thank you for your attention!