On January 1, 2022, the venerable German Civil Code will be expanded to include new types of contracts. Companies should take note today if their own offers could fall under the new types of contracts and then adapt to the new regulations.
A new title is being added to the law in §§ 327 to 327u BGB. In addition, there are changes in sales law, tenancy law, gift law and law on contracts for work and services.
The background to this legal development is the European Union. The new standards implement Directives 2019/770 and 2019/771. In view of the origin of the new law in the EU, it is hardly surprising how complex the new law already is with regard to its scope of application.
In the following, we will therefore not be able to present all cases in which the new law does or does not apply, but will limit ourselves to a first overview.
Contracts for digital products
Contracts for digital products is the generic term of the law. This includes the two subcategories of
- contracts for digital content
- Contracts for digital services.
In addition, there is the
, which has nothing to do with DHL, DPD, Hermes & Co. And the
- contract for things with digital elements,
whose scope of application should not be underestimated.
Contracts for digital content
Digital content is data. The data is digitally created and provided by the entrepreneur. Simple examples are software, computer games, music, films or books to which digital access is provided. This also applies if you receive a data carrier (DCD, CD, USB stick) for this purpose.
Contracts for digital services
Digital services, for their part, can take two forms, according to the legislator, although the two can of course overlap and still constitute a digital service.
- Either the creation, processing or storage of data in digital form is made possible, or only access to such data. An example of this would be a pet management platform where the pet owner enters data about their animals, such as vaccinations, in order to be reminded in good time of the next due veterinary visit.
- The second alternative involves sharing the data that has been uploaded or enabling interaction with such data. Think of classic social media accounts or even cloud-based word processing.
Package contracts
The package contract defined in the new § 327a BGB refers to contracts in which digital products are combined with other items or non-digital services. For example, if you buy a long-playing record with music (LP = analog medium) and receive a download code for the digital version, this is a package contract. Another example would be taking out a subscription to a video platform such as Amazon Prime, which includes a receiver device such as the Amazon Fire TV Stick.
Contracts for goods with digital elements
The new rules should also apply when goods contain digital products. The smartphone contains an operating system or the radiator thermostat has an app control using the manufacturer's app. The new rules should always be applied, regardless of whether the product can only be used with the digital products or also independently. For example, the smartphone cannot be used without the operating system supplied. A smart radiator thermostat, on the other hand, could be designed so that it can be operated entirely by buttons, with the app providing only an additional control option without added value. Depending on the case, there may be different regulations for these variants, but new standards must always be applied.
Incidentally, if you look at the smartphone example again, the apps that the buyer purchases in the app store are not part of the contract for goods with digital elements, but rather these are a separate contract for digital content. So it depends on whether a digital product was included in the purchase contract when the goods were purchased. To make it really complicated, you have to look at the purchase contract, i.e. the services owed. For example, if a smart TV manufacturer advertises its device with the presence of a certain app (e.g. Netflix app), the presence of the app becomes part of the purchase contract. Even if the buyer still has to download the Netflix app from a smart TV app store, a uniform contract for goods with digital elements is then in place.
Consideration
In principle, the consumer must pay a price. However, if they "pay" with their personal data, i.e. provide personal data or even have to provide personal data, the new regulations also apply.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.