The reasons why a dealer does not want to sell anything to consumers are diverse.Be it the (annoying) statutory right of withdrawal or simply a special range, which is only sales in the commercial sector anyway.Many of the currently applicable legal information obligations are based on the strong lobby of consumers.They should primarily one thing: consumers from contractual traps, unfairly acting dealers - and sometimes protect against themselves.So what is the pure B2B shop that consumers have no access and where are the advantages and disadvantages?
Who is a consumer?Who is an entrepreneur?
At the beginning there is of course the question of what makes a pure B2B shop at all.Sure, the name says it: Business to Business means that you want to completely exclude consumers in this shop and only sell to commercial customers.
Anyone who is a consumer, and who is an entrepreneur, describes the law: Consumer is every natural person who concludes a legal transaction for a purpose that cannot be attributed to their commercial or independent professional activity.However, if the subject of the contract is to serve both professional and private use, it is crucial which use predominates.It should be irrelevant what the buyer thinks, but the content of the purchase contract and the external circumstances should be used.So far so good.
An example: a craftsman buys a professional lag drill.But he also renovates his new house and therefore also uses it privately.However, since he acquired the device in the specialist market for craftsmen, the purchase is attributed to his business and not to him as a consumer.
In practice, you can't do much with these rigid, non -lifelong definitions (as is so often).After all, the BGH gives some clarity: the purchase by a private person who buys both as a consumer and in their freelance work as an entrepreneur is only to be viewed by a consumer if the purchase is clearly and undoubtedly assigned to its commercial or independent professional activityCan (Federal Court of Justice, judgment of September 30, 2009, Az.: VIII ZR 7/09).
In practice, it is precisely the borderline cases that lead to disputes.Hardly any private individual will buy a cash register with costs in the four -digit range.But what about a shower tray for the home of the real estate agent or an alarm system?Commercial or private?The address of a company as a delivery location in connection with the name of the customer as an invoice recipient does not allow a clear and undoubtedly -free conclusion to an order for independent professional purposes, according to the BGH (see above).Even the fact who pays the bill is only an indication, no evidence.
Not where B2B is on it is also B2B: the access control
Now there is another, very central question in the room: Does the so-called B2B shop also earn its name?A succinct banner on the homepage, which points out that consumers unfortunately have to stay outside, is not enough.The jurisprudence requires online retailers who apply in the B2B area and offer that they take all reasonable measures in order to actually avoid participation of consumers.
Numerous other information obligations such as the endlessly long legal texts or basic prices can then be omitted.However, the access procedure must be transferred to online trading, which triggers comprehensive surveillance obligations for the operator of the B2B shop.Above all, the crux of the matter is that the paid warning is threatened with the paid behavior due to their violation.
Warum ist das so? Rutschen Verbraucher durch, gehen ihnen wertvolle und gesetzliche Informationspflichten verloren und der Händler wird behandelt, als hat er einen normalen B2C-Shop – mit allem drum und dran, also Widerrufsrecht & Co.
Note on the exclusion of consumers
The operator of a pure B2B shop makes the obligation to clearly and specifically point out that his offer only applies to entrepreneurs.For practice, this means that the exclusion is not inconspicuous or hidden in the shop and must be carried out directly at the beginning of the website for its effectiveness.It should be well noticeable on every side of the shop.The consumer exclusion should be made before the customer reaches the specific products and especially before the contract is concluded.
No access without evidence: the virtual inlet control
Corresponding information on the start page of an website that the offer is aimed exclusively on traders are not sufficient in themselves.Because the numerous disputes regarding the B2B platform Melango have shown that it is by no means sufficient to keep consumers with such information from a purchase.Rather, there must be a "virtual input control" that really keeps consumers from triggering orders.To do this, the provider must take suitable control measures in order to check the customer's entrepreneurial status and to prevent an actual purchase by consumers.
On the one hand, an approval procedure can be carried out before a customer receives access to the side.Before the customer can enter the page/shop, he must provide the dealer that he is an entrepreneur (e.g. by submitting/scaning the trade record, the association or chamber card).
In a first step, however, a page can also be switched on in a first step that contains the visually and transparent reference to the exclusion of consumers that the visitor must first check off to get to the shop.In a second step, the customer must again provide the seller that he acts as an entrepreneur by submitting or submitting the scan/copy of the trade certificate etc.A real-time check of the entrepreneur via the VAT identification number is also permitted.However, there must be a "real" query and review.Orders with invented data must not be possible.
The essentials in brief:
A virtual input control must take place.Consumers must not be able to trigger orders.The exclusion should be perceptibly perceptible on each side of the shop.
The consumer exclusion should be made before the customer reaches the specific products and especially before the contract is concluded.
The exclusion should be simply formulated.No formulations and abbreviations should be used that do not say anything to the average consumer.Example: “A sale is only made to entrepreneurs, commercialists, freelancers, public institutions and not to consumers i.S. v.§ 13 BGB. "
In particular, there must be no information on the pages that allow the conclusion that consumers are entitled to conclude the contract (e.g. set cancellation/ right of return).
In the ordering process when entering the address, there may be no choice between the fields "private" and "company".The company's name must be designed as a mandatory information.
On the order overview page there is an additional check box with the following wording: “I confirm that I can make the order as an entrepreneur and not as a consumer.I have taken note of the terms and conditions/customer information. "
The seller can also specifically choose a platform for B2B trading, which is already designed and set up for the special surveillance obligations in the B2B area.
The mix does it: B2B area in the regular online shop
Traders who sell both B2B and B2C in a shop should ensure clearly and unequivocally separate B2B and B2C areas.Consumers must not have access to the commercial area as just described.However, it is advisable to set up two independent online shops for your own security.
Incidentally, the mixed forms are often the standard-i.e. shops in which both consumers and entrepreneurs can order side by side in parallel and regularly via the same check-out.Then it remains that at least consumers are among them and retailers have to play the complete program including all the necessary consumer information.However, this in turn provokes a little misunderstanding among the commercial customers: they also think that they also receive a right of withdrawal or can automatically also be used on consumer -protecting regulations such as those from the warranty law.But that's not the case at all.Entrepreneurs are not entitled to a right of withdrawal and they are (actually) informed in the cancellation policy.
Since the obligation to provide information, no other reason has been so popular with the warners: the instruction about online dispute settlement.A small sentence, including the link, washed up as much money in the pockets like no other.In the B2B shop, however, it has to be a sigh of relief: The ODR regulation information obligations that offers the basis only have to issue online retailers that conclude online purchase contracts or online service contracts with consumers.The platform for online dispute resolution is not usable for disputes in the B2B area.Corresponding information obligations are therefore eliminated for B2B shops.
Alles andere rund um das imprint bleibt jedoch bestehen: Name, Anschrift und Co. müssen auch ins B2B-imprint, denn die rechtliche Grundlage, das Telemediengesetz knüpft nicht an die Zielgruppe, sondern nur an die Gewerblichkeit der Webseite als solches an.
Cancellation policy and right of cancellation
There is no discussion on the subject of withdrawal law.With a few exceptions, purchases of consumers on the network include the right of withdrawal: the law grants the law the right to cancel its declaration of contract within a period of at least 14 days.A right of cancellation therefore only exists for consumer contracts.So there is no cancellation policy in the pure B2B shop.There is also no need to do so that there is no right of withdrawal.If a customer buys in his commercial property, he cannot rely on a right of withdrawal by law (see above).
Terms and conditions have to be mandatory, because why do you make all the effort and pay for expensive lawyers?In fact, we will have to search for a long time, and ultimately do not find a law where an obligation to get a general terms and conditions is confirmed.Regardless of whether two entrepreneurs have to do with each other or face a consumer.A special feature that is only available in e-commerce are the immense information obligations that also apply limited to the B2B area.
However, the use of terms and conditions offers other advantages, because they simplify everyday business, for example because terms and conditions map the special features of the offer offered or clarify any questions of doubt.In the event of a dispute, the dealer can refer its customers to the applicable terms and conditions.
In addition, almost all terms and conditions are shaped by strengthening the rights of the sellers and reducing the buyer.Even if this is only possible to a limited extent to consumers, entrepreneurs should use this opportunity within the legal limits, because there is more scope for design, especially in the B2B area.
For example, the warranty period for an entrepreneur can be shortened more than a consumer in the terms and conditions.Of course, this also has its limits and the dealer cannot free itself from any liability nor any other obligations.Sections 305 ff. BGB are also not a disposition of the contracting parties in entrepreneurial legal transactions (B2B), but are mandatory law if AGBs are to be agreed, according to the BGH (judgment of 20.03.2014, AZ: VII ZR 248/13).
Order and order confirmation
Almost every shop sends out a kind of confirmation of the receipt of the order because the shop systems also have this in their portfolio by default.In addition to the so-called pre-contractual information obligations (e.g. on the order overview page), online retailers actually even have to fulfill post-contractual information obligations.At least to a limited extent, commercial customers are protected.
When the contract is concluded in electronic business (for example via an online shop), the entrepreneur must immediately confirm access to the customer in an electronic way (e.g. by email).This applies not only to a consumer, but also in B2B trading.
Again and again online retailers are warned because they do not consistently implement the requirements from the law and case law when sending email advertising.Why?It still applies that the prior and express consent of the addressee is necessary in order to be able to send an advertising email to this.If the consent is not available, this represents an inadmissible harassment of the recipient.
So far and certainly known to all website operators (at least in theory).In this form of electronic advertising, however, the law does not distinguish between consumers and entrepreneurs.Therefore, z.B. Even in the B2B area, the e-mail address of the business partner is not used without being asked to send e-mail advertising.
Earth management and logistics
While contracts between entrepreneurs and consumers are basically the risk of damage and losses (so-called transport risk) at the dealer, a different regulation applies when sending in the B2B area, according to which the transport risk passes to the buyer, "as soon as the sellerthe forwarder, the carrier or the person or institution, which is otherwise intended to carry out the dispatch. ”
Accordingly, the commercial buyer cannot request a replacement from the seller if the goods are damaged on the transport route.The prerequisite is, of course, that the sender has properly packed the goods for safe transport.In addition, the transport company may not have made a mistake, otherwise recourse may be taken there.