I would like to ask about the Allgemeine Geschäftsbedingungen (AGB) and Widerrufsrecht. AGB is the terms of use about the transactions between me (company) and the customer. 1) AGB must be declared by law? 2) What must be included in AGB? Widerrufsrecht is just the ability of customer to send back the product for his reasons into 14 days. 3) Is there any worth mentioning about it?
An entrepreneur is not obliged to use "Allgemeine Geschäftsbedingungen" (AGB) when he enters into contracts with customers. If a seller does not use AGB, the contract is governed by the legal provisions of the applicable national law.
However, sellers often use AGB in order to imply terms into a contract which are to their benefit. A seller\'s AGB generally only become part of the contract if the seller, when entering into the contract, refers the buyer to them explicitly and gives the buyer in an acceptable manner the opportunity to take notice of the AGB\'s contents, and if the buyer agrees to their applying. Certain kinds of clauses of AGB may not become part of the contract (e.g. if they are so unusual that the buyer need not expect to encounter them). Other kinds of clauses of a seller\'s AGB may be ineffective according to the German Civil Code (BGB), if they unreasonably disadvantage the buyer.
The Widerrufsrecht (right of withdrawal) or Rückgaberecht (right of return) has to be distinguished from the AGB in general. According to European Law implemented in the German Civil Code consumers have a right of withdrawal or a right of return in distance contracts, e.g. contracts concluded online or by e-mail. This is mandatory, therefore deviating agreements to the consumer\'s detriment are forbidden.
The revocation/return period is 14 days if the consumer is provided at the latest on conclusion of the contract with a proper notification meeting the statutory requirements. A notification with a statutorily defined content provided in text form promptly after the contract has been entered into is deemed equivalent in distance contract cases. If the notification regarding withdrawal or return is provided to the consumer after the time stated above, the withdrawal or return period is one month.
The right of withdrawal or return is extinguished at the latest six months after the contract is entered into. Where goods are supplied, this period of time does not commence prior to their receipt by the recipient. Notwithstanding the aforementioned, the right of withdrawal or return is not extinguished if the consumer has not been instructed on his right of withdrawal or return according to the statutory requirements.
Other requirements may have to be borne in mind additionally when setting up an online shop. The E-commerce Contact Point Germany provides initial information on different aspects of e-commerce: www.ecommerce-verbindungsstelle.de (www).
We cannot recommend specific websites or specific lawyers concerning the drafting of AGB or other necessary information to be provided online. However, it is highly recommendable to seek individual and binding legal advice in case of any doubt concerning the use of AGB or other legal requirements concerning the setting up of a web shop.
Source:
Germany Trade and Invest
- Gesellschaft für Außenwirtschaft und Standortmarketing mbH
Internet: www.gtai.de (www)
Dezember 2013
