§ 3ff Consumer Protection Law

Please note: The current version of this paragraph is in force since 13.06.2014 and applies to contracts concluded since that date. Since it is a rather new piece of law there is no official English version available yet. As soon as the authority in charge issues an English version, we will publish it here.

 

For contracts concluded before the 13.06.2014, the following version of the paragraph applies:

 

§ 3. (1) If the consumer does not submit the contractual statement at the premises permanently used by the entrepreneur for the purposes of his business, or at a stand used by the entrepreneur for such purposes at a fair or market, the consumer may rescind his order or contract. Notice of Rescission may be given before the contract has been brought about or within one week thereafter; the time limit shall commence upon delivery to the consumer of a document containing at least the name and address of the entrepreneur, all information required to identify the contract and instructions on the consumer’s right of rescission, but at the earliest on the date on which the contract has been brought about. Such instructions shall be given to the consumer upon acceptance of the consumer’s contractual statement. In the case of insurance contracts, the right of rescission shall expire at the latest one month after the contract has been brought about.
 

(2) The right of rescission shall also arise where the entrepreneur or a third party working with him has conveyed the consumer, in the course of a direct marketing trip, excursion or similar event, or by personally and individually addressing the consumer on the street, to the premises used by the entrepreneur for the purposes of his business.
 

(3) The consumer shall not enjoy the right of rescission:

  1. if he himself has established the business contact with the entrepreneur or his agent for the purpose of making the contract,
  2. if no discussion has taken place between the parties or their agents before the contract has been brought about, or
  3. in the case of contracts which require immediate performance by both parties, if they are normally concluded by entrepreneurs outside their business premises and the agreed consideration does not exceed € 15, or if the business by its nature is not carried on at permanent business premises and the consideration does not exceed € 45.

(4) In order to be legally effective, notice of rescission shall be given in writing. It shall be sufficient for the consumer to return to the entrepreneur or his agent who took part in the contract activities (note: correctly: "contract negotiations") a document containing his contractual statement or that of the entrepreneur, with an endorsement to the effect that the consumer refuses to bring about or maintain the contract. It shall be sufficient for the notice to be sent within the period specified in Para 1 above.
 

(5) The consumer may furthermore rescind the contract application or contract if and when the entrepreneur has violated the Industrial Code regulations governing the collection and acceptance of services {sic} the addressing of private persons or the acceptance of orders for goods (Sections 54, 57 and 59 of the 1994 Industrial Code). The provisions of Paras 1 and 4 above shall also be applied to this right of rescission. This right shall also be due to the consumer in the cases referred to Para 3 above.
 

§ 3a. (1) The consumer may also rescind his contract application or contract if circumstances which are significant for his consent and which the entrepreneur has represented in the course of the contract negotiations as being highly likely to come to pass are found not to occur at all or only to a substantially lesser degree.
 

(2) Significant circumstances within the meaning of Para 1 above shall be:

  1. the expectation of a third party’s contribution or consent as required for the entrepreneur to render performance or the consumer to make use of it,
  2. the prospect of tax benefits,
  3. the prospect of public subsidies, and
  4. the prospect of a loan.

The contract may be rescinded within one week. This period shall commence when it becomes obvious to the consumer that the circumstances listed in Para 1 above have not come to pass at all or to a substantially lesser extent than promised and the consumer has been furnished with written instructions on this right of rescission. At the latest, the right of rescission shall expire one month after the complete performance of the contract by both contracting parties, or, in the case of bank and insurance contracts of a term of more than one year, one month after the contract has been brought about.

 

The consumer shall have no right of rescission if and when:

  1. he knew or was bound to know already during the contract negotiations that the significant circumstances will not come to pass at all or only to a substantially lesser degree,
  2. an exclusion of the right of rescission has been negotiated on a case-to-case basis, or
  3. the entrepreneur agrees to make a reasonable adjustment to the contract.

(5) § 3 (4) shall apply mutatis mutandis to the notice of rescission.

 

§ 4. (1) If the consumer rescinds the contract in accordance with § 3 or § 3a, the parties shall, concurrently, perform as follows:

  1. the entrepreneur shall return all payments received, together with statutory interest as of the date of receipt, and reimburse the consumer for all costs necessarily and beneficially spent by him on the article,
  2. the consumer shall return the goods received and pay the entrepreneur a reasonable sum for the use thereof, including compensation for any reduction thereby caused in the fair market value; the mere fact that the goods were taken into the consumer’s custody shall not give rise to a loss in value.

(2) If it is impossible or impractical to return the performance already made by the entrepreneur, the consumer shall repay the value thereof to the entrepreneur, to the extent that they are to his clear and predominant advantage.


(3) Paras 1 and 2 above shall be without prejudice to claims for damages.

 

Please note: Paragraphs § 3a and § 4 have not changed. In most cases, it is important to read § 3 and § 4 together.