Challenges facing commercial law from cybercrime

News  >  Challenges facing commercial law from cybercrime

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Cybercrime poses a major risk from the perspective of commercial law. Fortunately, this is something that an experienced lawyer can account for when drafting agreements to prevent claims for damages from being filed.

With an increasing number of businesses being exposed to attacks by hackers, we at MTR Legal Rechtsanwälte wish to stress the importance of ensuring not only that comprehensive protection measures are put in place for IT systems, but also that distribution agreements and agency/dealership agreements are reviewed and, where appropriate, amended to reflect the growing risk of cybercrime.

The process of drafting agreements is one of the cornerstones of commercial law. Attacks by hackers can wreak havoc on companies, potentially making it impossible to abide by contractual agreements. A commercial lawyer can check whether liability disclaimers that address these outcomes can be firmly established in distribution agreements, agency/dealership agreements, licensing agreements, etc.

Force majeure clauses are commonplace in distribution agreements. Germany’s highest civil court – the Bundesgerichtshof (BGH) – has defined force majeure in its case law as an external event that has no connection to business operations and which cannot be prevented even by exercising the utmost care. When it comes to claims for damages in a commercial context, the decisive factor is whether the company is responsible for the impossibility of performance and whether it could have prevented this state of affairs by taking appropriate measures. In instances where these sorts of claims become relevant, it is a good idea to consult a lawyer specializing in commercial law.

Whether force majeure can be attributed to a specific set of circumstances is often a matter of contention. To avoid protracted legal disputes, a commercial lawyer can include prominent liability disclaimers that cover cyberattacks in any agreements. This will enable the company to fend off claims for damages in the event that it is unable to fulfil contractually agreed services due to cybercrime.

To protect against cyberattacks, the company’s IT security measures and systems should of course meet the highest standards. At the same time, important contracts with business partners ought to be scrutinized by an experienced lawyer who practices commercial law. It is frequently the case that the risk of cybercrime has not been sufficiently taken into account in contractual agreements.

MTR Legal Rechtsanwälte advises on all aspects of commercial law, including drafting agreements.

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