While some innovations will only come into force at different points in time in 2022, the remaining changes have already been effective since 1 October 2021. The Act is also understood as a reaction to the increasing digitalisation of business transactions. In particular, the amendments have an impact on the drafting of contracts in the context of sales contracts, framework supply agreements, contracts for work and services and general terms and conditions.
I. Ineffectiveness of prohibitions of assignment of pecuniary claims, Section 308 no. 9 German Civil Code (BGB)
The newly introduced Section 308 no. 9 of the German Civil Code (BGB), which will come into force in March 2022, declares agreements invalid which exclude or restrict the assignment of monetary claims of the consumer. Furthermore, this also applies to other claims and rights of the consumer, if the entrepreneur has an interest worth protecting and the consumer does not have a prevailing legitimate interest. Consumers should be able to sell their monetary claims to third parties and thus facilitate the private enforcement of their rights (e.g. claims for damages or repayment) with the help of service providers.
II. Amendment of the requirements for automatic contract renewal clauses, Section 309 no. 9 b) German Civil Code (BGB)
The Fair Consumer Contracts Act also restricts the possibility of automatic contract renewal clauses through general terms and conditions. In future, contracts regarding the regular provision of goods or services and works may be terminated with a notice period of not more than one month before the expiry of the contract term. However, the previous notice period of three months will continue to apply to those obligations that came into existence or will come into existence before the regulation comes into force on 1 March 2022. In the case of contractual relationships that come into existence before this date but are subsequently extended, the transitional provision presumably requires the initial conclusion of the contract to be taken into account.
In addition, a tacit extension of such a contract for a further minimum term is prohibited. The extension can only be for an indefinite period and the contractual partner of the user must be given the option to terminate the contract with one month's notice. This amendment intends to make it easier for consumers to switch to another provider and thus promote competition.
Contracts for the supply of goods sold together and insurance contracts are legally exempt from these provisions.
III. Introduction of a termination button to simplify the termination of continuing obligations, Section 312k of the German Civil Code (BGB)
In order to avoid complicated termination processes between consumers and entrepreneurs, entrepreneurs are obliged to introduce a termination button on their homepage for continuing obligations with effect from 1 July 2022. The obligation applies to entrepreneurs who enable the conclusion of the same contract in electronic commerce at the time of termination and also applies to contracts concluded before this date. Consumers must be able to declare both ordinary and extraordinary terminations via this button.
For ordering situations in electronic commerce, the "order button" is already mandatory pursuant to Section 312j (3) sentence 2 BGB. A corresponding button used for termination must be unambiguously labelled, which should enable the consumer to terminate a continuing obligation with a few clicks. In addition, an electronic confirmation of termination should provide certainty about the receipt of the termination. If the entrepreneur fails to comply with his obligation to provide a corresponding button, the consumer is granted a right to terminate the continuing obligation without notice.
IV. Strengthening of Consumer Rights in the Case of Unauthorised Telephone Advertising, Section 7a UWG
As early as 1 October 2021, telephone advertising to consumers is only permissible if the consumer's express consent has been adequately documented. A consultation procedure is currently underway in which the Federal Network Agency is giving all interested parties the opportunity to comment in writing on the draft version of its interpretative guidance on proper consent documentation.
The documentation must be kept for 5 years. In the event of violations of the documentation obligation, the advertiser must expect fines of up to EUR 50,000.00.
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