Distance Selling Act

§312 b Distance selling contracts

(1) Distance contracts are contracts for the supply of goods or for the provision of services, including financial services, concluded between a trader and a consumer using exclusively means of distance communication, unless the contract is not concluded within the framework of a sales or service system organised for distance selling. Financial services
within the meaning of sentence 1 are banking services as well as services in connection with the granting of credit, insurance, pension provision for individuals, investment or payment.

(2) Means of distance communication are means of communication which can be used to initiate or conclude a contract between a consumer and a trader without the simultaneous physical presence of the contracting parties, in particular letters, catalogues, telephone calls, telecopies, e-mails and broadcasting, telecommunications and media services.

(3) The provisions on distance contracts shall not apply to contracts

1. on distance learning (Section 1 of the Distance Learning Protection Act),

2. on the time-share use of residential buildings (Section 481),

3. about insurance and its brokerage

4. on the disposal of land and rights equivalent to land, the establishment, disposal and cancellation of real rights in land and rights equivalent to land, as well as on the construction of buildings,

5. on the supply of food, beverages or other household items of daily use which are delivered to the residence, place of stay or place of work of a consumer by traders in the course of frequent and regular journeys,

6. on the provision of services in the areas of accommodation, transport, the supply of food and beverages and leisure activities, where the trader undertakes, at the time of conclusion of the contract, to provide the services at a specific time or within a precisely specified period,

7. which are closed

(a) using vending machines or automated business premises or

b) with operators of telecommunications services based on the use of public telephones, insofar as they relate to the use of such services.

(4) In the case of contractual relationships that comprise an initial agreement followed by successive transactions or a subsequent series of separate, temporally related transactions of the same type, the provisions on distance contracts apply only to the first agreement. If such transactions follow one another without such an agreement, the provisions on the trader's information obligations apply only to the first transaction. However, if no transaction of the same type takes place for more than one year, the next transaction shall be deemed to be the first transaction in a new series within the meaning of sentence 2.

(5) Further provisions for the protection of consumers remain unaffected.

§ 312 c Information of the consumer in the case of distance contracts

(1) The trader must provide the consumer with the information required by the regulation pursuant to Article 240 of the Introductory Act to the German Civil Code (BGB) in a timely manner prior to the consumer's contractual declaration, in a manner appropriate to the means of distance communication used, in a clear and comprehensible manner, and stating the business purpose. For telephone calls initiated by the trader, the trader must explicitly disclose his identity and the business purpose of the contact at the beginning of each call.

(2) The trader shall also inform the consumer in writing of the contractual provisions, including the general terms and conditions, as well as the information specified in the legal order pursuant to Article 240 of the Introductory Act to the German Civil Code, to the extent and in the manner specified therein, namely

1. in the case of financial services, in good time before the consumer submits his/her contractual declaration or, if at the consumer's request the contract is concluded by telephone or using another means of distance communication that does not permit notification in text form before the conclusion of the contract, immediately after the conclusion of the distance contract,

2. in the case of other services and the delivery of goods, as soon as possible and at the latest until the contract has been fully fulfilled; in the case of goods, at the latest until delivery to the consumer.
A notification pursuant to sentence 1, no. 2 is unnecessary for services provided directly using distance communication means, provided these services are provided in one go and are billed through the operator of the distance communication means. In this case, however, the consumer must be able to obtain information about the address of the trader's branch office where they can submit complaints.

(3) In the case of financial services, the consumer may at any time during the term of the contract require the trader to provide him with the contractual provisions, including the general terms and conditions, in a document.

(4) Further restrictions on the use of means of distance communication and further information obligations under other provisions remain unaffected.

§ 312 d Right of withdrawal and return for distance selling contracts

(1) In the case of a distance contract, the consumer shall have a right of withdrawal pursuant to Section 355. Instead of the right of withdrawal, the consumer may be granted a right of return pursuant to Section 356 in the case of contracts for the delivery of goods.

(2) Notwithstanding Section 355 (2) Sentence 1, the cancellation period shall not begin before the information obligations pursuant to Section 312c (2) have been fulfilled, in the case of delivery of goods not before the day of their receipt by the recipient, in the case of recurring delivery of similar goods not before the day of receipt of the first partial delivery and in the case of services not before the day on which the contract is concluded.

(3) The right of withdrawal also expires in the following cases for a service:
1. in the case of a financial service, if the contract has been fully performed by both parties at the express request of the consumer before the consumer has exercised his right of withdrawal,

2. in the case of any other service, if the trader has started to perform the service with the express consent of the consumer before the end of the withdrawal period or if the consumer has initiated the service himself.

(4) Unless otherwise provided, the right of withdrawal does not apply to distance contracts

1. for the delivery of goods which are manufactured according to customer specifications or are clearly tailored to personal needs or which, due to their nature, are not suitable for return or can spoil quickly or whose expiry date would be exceeded,

2. for the supply of audio or video recordings or software, provided that the data carriers supplied have been unsealed by the consumer,

3. for the delivery of newspapers, magazines and illustrated magazines,

4. to provide betting and lottery services,

5. which are concluded in the form of auctions (§ 156) or

6. which involve the supply of goods or the provision of financial services, the price of which is subject to fluctuations on the financial market over which the trader has no control and which may occur within the withdrawal period, in particular services related to shares, unit certificates issued by an investment company or a foreign investment company and other negotiable securities, foreign currencies, derivatives or money market instruments.

(5) Furthermore, the right of withdrawal does not apply to distance contracts where the consumer already has a right of withdrawal or return pursuant to Section 355 or Section 356 on the basis of Sections 495, 499 to 507. Paragraph 2 shall apply accordingly to such contracts.

(6) In the case of distance contracts for financial services, by way of derogation from Section 357 (1), the consumer shall only be obliged to pay compensation for the value of the service provided in accordance with the provisions on statutory withdrawal if he has been informed of this legal consequence before submitting his contractual declaration and if he has expressly agreed that the trader may begin to perform the service before the end of the withdrawal period.

§ 312 f Deviating agreements

Unless otherwise provided, the provisions of this subtitle may not be deviated from to the detriment of the consumer or customer. Unless otherwise provided, the provisions of this subtitle shall also apply if they are circumvented by other arrangements.