Unfortunately, I had to take this route with one trade because they were completely uncooperative and, for example, declared an acceptance protocol null and void afterwards and have not withdrawn from the declaration of nullity for months. In principle, this is possible since it is a distance selling transaction, BUT it seems to me that it is rather a [WERKLIEFERVERTRAG] with you. If it were a [WERKVERTRAG], it would be clearer. You must be able to justify why it is a [WERKVERTRAG]... I will send you an excerpt of my letter for orientation:
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We have effectively revoked our declaration of intent aimed at concluding the concluded contract for work (acceptance of the offer dated xx.11.2019) pursuant to §§ 355 para. 1, 312 g para. 1, 312 b Building Code. Consequently, we revoke the aforementioned contract for work and kindly request written confirmation of receipt from your client.
Enclosed you will find the revocation sent by fax. Furthermore, it will also be sent to your client by registered mail with acknowledgment of receipt.
We have a claim against your client for payment of xx.xxx,xx EUR pursuant to §§ 357 para. 1, 355 para. 3 sentence 1, 312 g para. 1, 312 b, 312 Building Code.
We have a claim for the return of the payments we made amounting to xx.xxx,xx EUR pursuant to § 355 para. 3 sentence 1 in conjunction with § 357 para. 1 Building Code, since the requirements for this are met.
The provisions of §§ 312 b and 312 g Building Code apply pursuant to § 312 paras. 1 and 2 Building Code. The concluded contract for work concerning tile work is a consumer contract within the meaning of § 310 para. 3 Building Code. We are consumers within the meaning of § 13 Building Code. Your client acted as an entrepreneur within the meaning of § 14 Building Code when he offered us the performance of tile work. The §§ 312 ff. Building Code apply in their current version, since the contract was concluded after the entry into force of the Act to Implement the Consumer Rights Directive on June 13, 2014, see Article 229 § 32 Introductory Act to the Civil Code.
There is no exception to the scope of application according to § 312 para. 2 Building Code. The contract for work concerning tile work is in particular not a contract for the construction of new buildings or with regard to significant remodeling measures on existing buildings within the meaning of § 312 para. 2 no. 3 Building Code. The term significant remodeling measures is, in the spirit of the greatest possible consumer protection, to be interpreted narrowly in principle, so that only those remodeling measures are included here that are comparable to the construction of a new building.
By accepting the offer dated xx.11.2019, the parties concluded a contract outside business premises within the meaning of § 312 b para. 1 sentence 1 no. 1 Building Code.
For a contract concluded outside the business premises according to § 312 b Building Code after the implementation of the Consumer Rights Directive in summer 2014, it no longer matters whether the entrepreneur appeared at the consumer’s order or on whose initiative the contract negotiation or contract conclusion took place. After implementation of the Consumer Rights Directive, there is no longer any exception for the entrepreneur commissioned by the consumer (see Grüneberg in Palandt, Building Code, 75th edition, § 312 b margin no. 1; Förster, The Implementation of the Consumer Rights Directive in §§ 312 ff. Building Code, JA 2014, 721, 725: the scope is thus expanded).
Our right of revocation arose for the contract concluded outside business premises, § 312 g para. 1 Building Code. There is no exception to the general right of revocation according to § 312 g para. 2 Building Code.
The parties have in particular not concluded a contract whereby we, as consumers, expressly requested the entrepreneur to visit us in order to carry out urgent repair or maintenance work, § 312 g para. 2 sentence 1 no. 11 Building Code.
Nor is there an exception pursuant to § 312 g para. 2 sentence 1 no. 1 Building Code. The concluded contract for work is not a contract for the “delivery of goods.” Within the meaning of the Consumer Rights Directive, contracts for the delivery of goods are only purchase contracts according to §§ 433 ff. Building Code and supply contracts according to § 651 Building Code. Contracts for work according to §§ 631 ff. Building Code are to be regarded as contracts for the provision of services (see also District Court Bad Segeberg, judgment of April 13, 2015, 17 C 230/14 with further references, cited according to juris). The contract concluded by the parties regarding the tile work is a contract for work in the sense of §§ 631 ff. Building Code.
We exercised our right of revocation by the declaration of xx.10.2020 within the deadline. By letter dated xx.10.2020, we declared the revocation to your client pursuant to § 355 para. 1 sentence 2 Building Code. Your client did not inform us in any way about a possible right of revocation. The revocation period under § 355 para. 2 sentence 1 Building Code of 14 days therefore did not start to run pursuant to § 356 para. 3 sentence 1 Building Code. Our right of revocation could therefore be exercised within a period of 12 months and 14 days after conclusion of the contract, § 356 para. 3 sentence 2 Building Code.
By exercising the right of revocation, the contract is converted into a settlement relationship, § 355 para. 3 sentence 1 Building Code.
For contracts concluded outside business premises, § 357 Building Code regulates the legal consequences as a more specific provision compared to § 355 Building Code. According to § 357 para. 1 Building Code, the received services are to be returned. This results in our payment claim amounting to xx.xxx,xx EUR.
Compensation for the material delivered by your client is not to be deducted. Your client has no claim for compensation for the material delivered. A possible legal basis for such a claim is lacking. The contract has transformed by withdrawal into a unique obligation to return relationship. §§ 355 ff. Building Code contain an independent and closed system of reversal. Unlike the previous version of § 357 para. 1 sentence 1 Building Code (old version), there is no reference to the right of withdrawal anymore (see Möller, The Implementation of the Consumer Rights Directive in German Law, BB 2014, pp. 1411, 1417). Regulations on compensation by the consumer can be found in §§ 357 paras. 7, 8 and 9 Building Code. When a contract for work is revoked here, the provision of § 357 para. 8 Building Code applies. According to § 357 para. 8 Building Code, the consumer owes compensation only if he expressly requested the entrepreneur, despite a revocation instruction, to begin performance before the revocation period expired. Conversely, it follows that there is no claim for compensation against the consumer if the consumer – as in this case – was not informed about the right of revocation and the entrepreneur nevertheless started the work before the revocation period expired.
The provisions of §§ 355 ff. Building Code, in conjunction with §§ 312 ff. Building Code, are intended to ensure the greatest possible protection of the consumer in implementation of the Consumer Rights Directive. From the regulatory system, it follows that the consumer who is not informed enjoys the greatest possible protection. It therefore also corresponds to the presumed will of the legislator that it is not unfair that the uninformed consumer owes no compensation. The absence of a claim for compensation also does not constitute an unreasonable disadvantage for the entrepreneur, since under the conditions of § 356 para. 4 sentence 1 Building Code, the entrepreneur can cause the right of revocation to expire (see also Möller, BB 2014, pp. 1411, 1418).
The exercise of the right of revocation is not contradicted by our declarations from xx.02.2020 or xx.02.2020 to refrain from the contract. Our right of revocation is not excluded in this respect pursuant to § 312 g para. 1 Building Code. According to the case law of the Federal Court of Justice, the purpose of the right of revocation is to give the consumer a right to unilaterally withdraw from the contract that is not subject to any material conditions and is easy to exercise, which exists alongside and independently of the general rights granted to anyone concluding a (contract for) work (see BGH, judgment of November 25, 2009 - VIII ZR 318/08 margin no. 17, BGHZ 183, 235; judgment of March 16, 2016 - VIII ZR 146/15 margin no. 16, NJW 2016, 1951). Therefore, the consumer can freely choose within the revocation period whether to assert the right of revocation.
It is therefore without prejudice to us to exercise our right of revocation even after possible termination.
According to established case law, a revocation of the contract is not opposed by the fact that this contract has been replaced by another contract. This applies even if the contract has been fully performed. The opposite view would not do justice to the idea of consumer protection.
Please confirm receipt of this letter in writing.
Yours sincerely....
I have fundamentally followed the reasoning of the judgment of June 2, 2017, file number: 23 O 47/16.
The right of revocation carries a certain volatility. In theory, you could thus build your house in individual trades for free. You do not choose the most economically favorable offers, but only those who have waived the instruction on revocation. In my case, it could not be solved differently. All other trades performed good work and were cooperative in case of defects and solutions could be worked out together, but this trade took the cake. Legally wandering in the thickest fog, insulting (even in writing), threatening (with senior public prosecutor) and of course completely uncooperative. I have advised the other trades to check their future contracts for work accordingly.