No mandatory obligation to include a fax number in the revocation instruction – New clarifications by the Federal Court of Justice
Companies in the trade sector frequently face the challenge of fulfilling information and instruction obligations in connection with consumer contracts in a legally compliant manner. A central element in this regard is the revocation instruction, the formal and substantive requirements of which are regularly the subject of judicial disputes. With its judgment of July 30, 2024 (Case No. VIII ZR 525/21), the Federal Court of Justice (BGH) made clear that there is no general obligation to provide a fax number in the revocation instruction. The decision removes uncertainties regarding the statutory requirements and provides companies with greater clarity when drafting revocation instructions.
Legal framework for the revocation instruction
Requirements for revocation instructions in distance selling
Consumer protection regulations, especially in distance selling, stipulate detailed information obligations for entrepreneurs. The entrepreneur must inform the consumer, among other things, about the existence of a statutory right of withdrawal, the modalities of its exercise, and the contact options for exercising the right of withdrawal. The legal basis for this is in particular §§ 312g, 355 BGB and Art. 246a EGBGB.
Means of communication for the revocation
A central question is by which means the consumer can declare their revocation and which contact information must be mandatorily provided for this purpose. The law states that the entrepreneur must provide those means of communication that ensure prompt and efficient communication. While the fax was long considered a common communication method, standards are increasingly shifting to electronic channels such as email or web forms.
The BGH decision: Background and evaluation
Background of the proceedings
In its decision, the BGH addressed the question of whether a company that no longer generally uses its fax number for communication with consumers is nevertheless obliged to provide it in the revocation instruction. In the case at hand, the defendant trader had not specified a fax number in its revocation instruction, which the plaintiff considered to be a breach of the statutory information requirements.
Key statements of the judgment
The VIII Civil Senate of the BGH clarified that listing a fax number in the revocation instruction is not mandatory if the entrepreneur no longer uses or provides this means of communication for correspondence with consumers. Including a fax number is then unnecessary, as the aim and purpose of the relevant consumer protection regulations only require those means of communication to be specified through which the entrepreneur can actually be reached and a prompt processing of the revocation can be ensured.
The decision expressly emphasizes the “state of the art” and the change in communication behavior: As long as digital communication channels (such as email) are available to the consumer for exercising the right of withdrawal, a fax number no longer has to be automatically included in the instruction. The requirements for the availability of communication means are based on actual business practice.
Impact on practice
The judgment has a direct impact on contract design practice. Companies are free to adapt their revocation instructions to the actual communication channels available. The inclusion of a fax connection is only necessary if it is actually provided and used as a means of communication. Thus, companies are given a certain degree of flexibility in design, without unduly impairing the rights of consumers.
Significance for companies and consumers
Clarity and legal certainty for entrepreneurs
With this BGH case law, companies gain greater legal certainty regarding the requirements for mandatory instructions. They can base their choice of communication channels to be published on the actual circumstances in the company and no longer have to fear that the mere absence of a rarely or no longer used fax number is subject to warning.
Ensuring effective consumer protection
At the same time, the consumer is not placed at a disadvantage: It remains crucial that an efficient and reasonable means of communication for exercising the right of withdrawal is actually made available. The legislator continues to aim for low-threshold access to the right of withdrawal, but grants companies the possibility to rely on modern communication technologies.
Conclusion: Adapting to technological change and outlook
The BGH’s clarification takes account of the changing conditions in business and communication practice. Companies in e-commerce and mail order benefit from legal certainty that only those means of communication which not only exist but are also actually used for processing revocation declarations need to be listed in the revocation instructions.
Nonetheless, careful review and alignment with the current legal requirements and supreme court case law remain essential to prevent potential liability risks.
For companies, investors, and private individuals who have questions regarding the implementation or interpretation of information and instruction obligations, or who require assistance with contractual drafting, the Rechtsanwalt at MTR Legal are available as competent contacts.
