THE SEPERATION BETWEEN COMMERCIAL/PROFESSIONAL AND PERSONAL USAGE; AND SOLVING THE CONSUMER CONFLICT

Mehmet Burak IŞIK
23 Eyl 2022
3 dakikada okunur

In this article I would like to show you what some consumer law terms mean in German law; the place of main solution authority in German judicial system; a look to professional / personal usage difference with a Federal Court order for an example.

First of all, who is consumer?

Let’s have a look at Bürgerliches Gesetzbuch (BGB), the German Civil Code.

*Bürgerliches Gesetzbuch (BGB)

sec.13 BGB: A consumer means every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession.

(Germany has also accepted European Union directives about protection of consumers. So you can look at the Directives also for some definitions of consumer law.)

Most consumer protection rules require a “consumer contract”. A consumer contract is defined in sec.310 para.3 BGB.

sec.310 para.3 BGB: …contracts between an entrepreneur and a consumer…

So, who is entrepreneur? “Entrepreneur” is also defined in BGB, sec.14.

Sec. 14: (1) An entrepreneur means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

Consumers can become sellers also, for example they can sell a second hand product to another consumer. In this situation, which consumers that are dealing with other consumers are mostly not required to comply with consumer protection rules.

Germany does not have a general “consumer protection act”. The various provisions that provide for consumer protection are contained in various legal acts (for example, especially German Civil Code. On the other hand, you can see some specific protections in different legal acts).

In German judicial system, courts been organized in 5 branches:

- Ordinary courts

- Administrative law courts

- Tax law courts

- Labour law courts

- Social law courts

Here we will focus on Ordinary Courts. They dealing with both criminal and most civil cases.

Germany does not have a specialized “Consumer Court”

Ordinary Courts are divided into four sub-courts:

Amtsgerichte

Landsgerichte

Oberlandsgerichte

Bundesgerichtshof

*Bundesgerichtshof

These 2 courts, Amtsgerichte and Landsgerichte, are in charge in civil cases as first degree courts. And consumer cases included in civil cases. And the other courts up there are appeal courts for civil cases.

Finally, I would like to show you a decision of German Federal Court. You will see the distinction of usage for business or profession and personal usage:

BGH NJW 2009, s.3780 –

A lawyer orders a lamb to his office address. But then he wants to use his right of withdrawl (to give up on buying decision).

The court discussed that the conflict, between this lawyer and the seller of the lamb is included “consumer protection” or not.

They said, if a person doesn’t act with a commercial or professional purpose or if that commercial or professional purpose is not clearly/apparently understandable; a deal is included to consumer protection.

The seller claims, it is clearly/apparently understandable that he acts with a professional purpose, because he ordered the material to his office.

The lawyer claims that he ordered the lamb for using it at his home.

According to the decision: Giving the office address as the place to send the product does not supply the requirement of being clearly/apparently understandable. ‘Cos, anybody who can work in an office as an assistant also can order to office address. Or someone who spend most of her time in an office, can order something to the office for her personal usage.

As a conclusion; if someone buy the material for resell, or buy the material for using it about his profession, in her job, or it’ll usefull on doing his job etc.; these are not included to consumer protection.

In this article, I wanted to give you a little overview of consumer conflict resolutions in German law system.