Why B2B is not necessarily always B2B when it comes to consumer protection

Online-shops that officially trade as B2B-shops must comply with European consumer protection regulations or make actually sure that only business customers can place orders in the shop. In order to ensure that consumers do not use the shop, it is not sufficient to provide the respective disclaimer on the website. That was recently ruled by the Regional Court in Dortmund.

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On “warranty” and “Gewährleistung”

When drafting and negotiating technology agreements of almost any sort between German companies and US or UK companies (or companies from other common law based countries), particularly on software, one of the various Groundhog moments that one experiences is the never-ending discussion on everything that is “warranty”. Continue reading

Forfeiting a Contractual Penalty by Continuously Storing a Photograph

On September 12th, 2012 the Higher Regional Court of Karlsruhe – 6 U 58/11 – decided on the question, which actions a debtor has to restrain from after he signed a declaration to cease and desist “using a photograph on the internet”. Continue reading

On Liability and Liability Clauses in German Law

When you negotiate agreements between German companies and companies with a – broadly speaking – common law background, especially the U.S., one issue that keeps appearing is the parties’ liability for damages. Groundhog day, if you will.

“Liability” is certainly a difficult legal term to being with, especially as you have to first decide what you are actually talking about when using the word. Continue reading

More on exhaustion

Just after finishing our recent post on the exhaustion doctrine (ECJ “Usedsoft”), I came across two other news reports touching upon the same issues. The first concerned an ongoing dispute between Microsoft and a German used license trading company . The second pointed to an (unintentionally comical) decision of the Higher Regional Court of Stuttgart (Oberlandesgericht Stuttgart). Continue reading

Termination of a Perpetual Software License under German Law

I have just (goes to show how much time I really have to scan the law journals for relevant stuff) stumbled upon a very interesting decision by the District Court of Cologne published in the February edition of Germany’s famed “C&R” (i.e. “Computer & Recht” = “Computer & Law”) regarding the terminability of perpetual software licenses under German law for material breaches of contract. As per the District Court of Cologne the answer is: Sure you can! Which is a bit surprising, really. Continue reading

General Terms and Conditions and What That Means for Localizing Contracts to German Law

When you’re asked to localize contracts coming from a U.S. legal background so that they function under German law two very different legal worlds collide. Things just work differently over here. And things word differently over there. We draft our contracts differently, we use different language (which is why simply having a translator go over your documents just won’t cut it, much less asking uncle Google), our concept of selling and licensing software is nowhere near the “this software is licensed not sold” was of thinking, and so on and so forth. Nothing wrong with that, but it provides for some hard going sometimes.

One of the more peculiar concepts of German contract law is that of or our “Law on General Terms and Conditions” (Google Translator tells me that in English that should be “Legal terms and conditions of” which isn’t even close, so there…). In a nutshell, the idea is this: If, as a company, you work with standard contracts, i.e. a set of contractual documents that you have in your drawer all drafted to best fit your particular interests and ready to pull out for every new customer you want to do business with, the terms and conditions of those contractual documents are subject to the so-called “content control” (we Germans like control, as is well known). Continue reading