A tradesman had offered his services at the customer's doorstep. The customer exercised his right of withdrawal. (Photo: © Perig Morisse/123RF.com)
Read aloud:
Works contract or consumer construction contract? The distinction is important when it comes to door-to-door sales. Only with the latter does the tradesman get his money if the customer cancels and hasn't been informed.
Special rules apply to transactions with consumers. One of the most important is that for contracts that outside of business premises are closed, Consumer Right to cancel This has cost many a craftsman his wages: not or wrong about the right of withdrawal instructed, may even deprive himself of his money. In the case decided by the Higher Regional Court (OLG) of Celle, the craftsman empty-handedbecause he hadn't taken that into account.
A craftsman offered Front doors He offered his services. He agreed with one of the property owners to carry out the work for a price of 21.000 euros. to clean roof tiles and seal and to create a wooden facade renovateThe customer paid 12.500 euros. But when the craftsman had already partially completed the work, revoked the customer placed the order and requested the deposit .
In return, the craftsman demanded a replacement value for his previous work done: 8.050 euros. He said the customer could only claim back the difference between the deposit and the purchase price.
The Higher Regional Court (OLG) of Celle sided with the customer, while the tradesman was left empty-handed. Consumer construction contract If the contract had been concluded, then the legal situation would be as assumed by the craftsman, the Higher Regional Court explained. Consumer construction contract is available in § 650 i BGB, which was awarded in 2018 with the Building law reform In this type of contract, the services of both contracting parties are to be to return. Customers would have to Replace the value of work performed.
Operations management
Operations management
Craft policy
To one Consumer construction contract but here it is not. Such a contract is according to § 650 i BGB only occurs when a consumer has a contract with a trader New build or significant reconstruction measures on a building, according to the ruling.
Here but it is a usual Work contract between a consumer and a craftsman who outside The customer can cancel the contract within 14 days of the conclusion of the contract. withdraw.
This Deadline However, the period for revocation only begins when the entrepreneur informs the customer about his Right of withdrawal informed However, in this specific case, the craftsman missedThe contract, signed by hand at the front door, contains no correct instruction to the consumer’s right of withdrawal, the Higher Regional Court emphasized. Therefore, the customer can one year and 14 days later withdraw from the contract and demand the deposit back.
The customer must also not the Value for his services replaceThis is impossible because the craftsman has carried out his work, without the homeowner correctly about his Right to cancel zu instruct.
"The decisive factor for this decision was the precise legal classification of the contract: In the case of a Consumer construction contract are the mutual services in case of revocation to return, for work performed, their value to replace. At a "settle" In a consumer contract, the customer only owes replacement valueif he is sufficiently informed about his right of withdrawal instructed was missing here. A Consumer construction contract is only applicable to work on an existing building if this Work "significantly" In the opinion of the Senate, among others, they must be in accordance with the New building equivalent and encompass several trades. The work agreed upon in this case was not of such a scope," writes the OLG Celle literally.
Higher Regional Court of Celle, decision of 26 April 2022, Ref. 6 U 6 / 22
Right to cancel
Since 2014, private customers have had a 14-day Right to cancel
at Distance selling contracts and for contracts that outside business premises were closed (AGV).
Example of a AGV: The craftsman takes measurements on site and then concludes a contract directly with the customer. oral Contract. In such situations, businesses must inform consumers in a timely and comprehensive manner about their Inform about the right of withdrawalFrom this point on, the customer can 14 days long revoke the contract without giving reasons.
Attention: If the instruction about the right of withdrawal missing, is incorrect or incomplete, extended the right to 12 months and 14 days! If the craftsman begins his work at the express request of the customer near Expiry of the 14-day period, the customer should not forget to read the instructions! Only then does the customer have to pay for the services already provided in the event of a cancellation. pay. Without In such cases, the craftsman will not follow the proper cancellation policy blank out!
New rules for the cancellation policy since May 28, 2022:
- Since 28 May 2002, no Fax number no longer be mentioned – neither in the cancellation policy nor in the cancellation form! Voluntary information is still possible.
- The Phone number . from 28 May 2022 in the Right of Withdrawal (Note: not in the cancellation form!).
- The Email address . in both be specified, including in the Cancellation form.
- The cancellation policy must also inform consumers about the circumstances under which they may exercise an initially existing right of cancellation. verlieren, inform.
- New is also that the consumer Confirmation To do so, the trader must provide the consumer with a Documents (as paper, email, SMS, etc.) confirming that the customer expressly agrees to the execution of the contract before the expiry of the withdrawal period agreed and has confirmed his knowledge of the associated loss of the right of withdrawal upon contract execution. The customer must also be informed of this fact.
No right of withdrawal for emergency operations
In individual cases, the customer no right of withdrawal, even if the contract was concluded outside the business premises. Such exceptions are for example "Emergency operations" Who urgent repairs and maintenance measures for which the consumer has expressly requested the tradesman. This could be, for example, a burst pipe or the repair of storm or hail damage. Please note: The exceptions do not apply automatically. Rather, the tradesman must inform the consumer about instruct, that he has no right of withdrawal.
PRACTICAL TIP
The Central Association of German Skilled Crafts (ZDH) has current Sample forms created for craftsmen, including a Right of Withdrawal for consumers. All samples, information and a guide on consumer withdrawal rights do you think ...? Findfree to download > here on zdh.deDHB now also digital!Simply click here and register for the digital DHB!
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