Definition of Order in Law
Die Order is a multifaceted term in legal science and describes various legal actions, particularly in civil law, commercial law, labor law, and administrative law. An order is not limited to the simple acquisition of goods or services but includes numerous legal acts in which rights and obligations are established, altered, or terminated. At its core, an order often refers to a declaration of intent, the conclusion of a contract, or the transfer of an office or function.
Order in Civil Law
Order as Conclusion of Contract
In civil law, the Order is regularly equated with the submission of a declaration of intent to conclude a contract. In particular in sales law, the order constitutes the offer to conclude a purchase contract (§ 145 BGB). By placing the order, the customer makes a binding declaration of intent aimed at the delivery of specific goods or the provision of a service. The acceptance of the order by the recipient results in the conclusion of the contract.
Example:
A customer orders goods in an online shop. The order constitutes the offer. Only upon acceptance by the seller—often by shipping confirmation or delivery—is the purchase contract concluded.
Obligatory Transactions and Dispositional Transactions
In the case of an order as an obligatory transaction, a legal obligation arises for the debtor to perform. In connection with the order of an item, this may also concern the dispositional transaction, for example in the transfer of ownership by agreement and delivery (§§ 929 ff. BGB).
Order in Commercial Law
Commercial Order
In commercial law, the order plays a central role, especially in the shipment of goods and services between entrepreneurs. The commercial order is often subject to special formal requirements or internal company procedures and is regularly accompanied by general terms and conditions (AGB).
Classification of Orders in Commercial Transactions
Traders often place orders as part of a procurement process. Upon receipt of the commercial buyer’s order, there is an offer within the meaning of § 145 BGB. According to the German Commercial Code (HGB), special rules apply for merchants, for example, regarding the duty to examine and give notice of defects (§§ 377, 378 HGB), which relate to the order and delivery.
Order as Transfer of Office
Order in Corporate Functions
In corporate law and public law, order refers to the formal appointment or nomination to an office or a corporate position. This includes, for example, the appointment of a managing director of a GmbH (§ 6 GmbHG), the appointment of a supervisory board member (§ 101 AktG), or the appointment of a board member (§ 84 AktG).
The order is generally given by an appointing body, for example, by the shareholders’ meeting or the supervisory board, and is often subject to formal requirements (written form, entries in the commercial register).
Order in Public Law
Order also exists in public law, for example, the appointment of civil servants or the appointment of experts. Here, the order involves the transfer of an office by an administrative act and is often tied to requirements such as expertise, reliability, and certain examination requirements.
Order in the Law of Obligations
Assignment and Service
An order may also involve the establishment of an assignment or service contract (§§ 611 ff., 662 ff. BGB). The selection and appointment of service providers, contractors, or vicarious agents is regularly effected by an order on the part of the principal.
Substitute Appointment
In certain cases, the law provides for a so-called substitute appointment; for example, when a club board cannot be elected or is unable to perform its duties (§ 29 BGB). Here, the local court appoints a suitable person to perform the functions of the board.
Order in Property Law
Establishment of Real Rights
In property law, order refers to the creation of a limited real right, such as the creation of a land charge or mortgage (§§ 873, 1191, 1192 BGB). The order is effected by agreement and registration in the land register. Easements or usufruct rights are also established by order.
Provision of Collateral
In banking and credit security law, the provision of collateral such as guarantees, land charges, or security transfers of ownership is of central importance. These orders are often made to secure claims and are subject to special formal requirements, such as notarization or registration in the land register.
Order in Labor Law
Appointment of Employee Representatives
In labor law, an order refers to the appointment of persons to company functions—for example, as a data protection officer (§ 38 BDSG), as a company first aider, or safety officer. The order here is a legally constitutive act by the employer, which triggers certain rights and obligations.
Formal Requirements and Documentation
The legality of an order may be subject to various formal requirements. Many orders require written form or must be entered in public registers (e.g., commercial register, land register) to be effective.
Orders in electronic form are permissible under § 126a BGB, provided no special form is required by law. For orders with far-reaching legal consequences (e.g., appointment of a managing director), entry in the commercial register is often constitutive for effectiveness.
Distinction: Order, Assignment, Nomination
The order must be distinguished from the concept of assignment or nomination even though these terms are sometimes used synonymously. An order often requires a certain formalization and legal effect, whereas assignment merely refers to the delegation of a task or activity. Nomination emphasizes the selection aspect and is primarily established in public and ecclesiastical law.
Summary
The order is a central, widely used concept in German law. It covers the submission of declarations of intent as the basis for concluding contracts, the transfer of offices and corporate functions, the establishment of real rights, as well as the arrangement of collateral and legal relationships in business life. Depending on the area of law, different requirements, formalities, and legal consequences must be observed. The precise structure and legal effect of the order always depend on the underlying facts, the respective field of law, and the relevant statutory provisions.
Frequently Asked Questions
What legal requirements must be met for a valid order in online commerce?
For a valid order in online commerce, a binding offer and its acceptance according to §§ 145 ff. BGB (German Civil Code) are required. Legally, an order is deemed an offer to conclude the contract by the customer. The seller’s acceptance generally occurs by means of an order confirmation, although automated confirmations of order receipt generally do not constitute acceptance (§ 312i para. 1 no. 3 BGB). It must be clear that the buyer is making a binding request for service under the specified terms. Other requirements include clear identification of the goods or services ordered, transparency regarding price, shipping costs, and delivery conditions, as well as the effective inclusion and acknowledgment of the General Terms and Conditions (AGB) by the customer. Additionally, the provider must comply with special information obligations pursuant to § 312d BGB and Art. 246a EGBGB, including information on right of withdrawal, payment methods, and delivery times.
When does the placement of an order result in a legally binding purchase contract?
In legal terms, a purchase contract pursuant to § 433 BGB is concluded by two matching declarations of intent— the offer (usually the customer’s order) and the acceptance (e.g., by order confirmation or delivery). In online commerce, the user is typically given the option to submit their order as a final action (“Buy now,” etc.), and this click constitutes the offer. Acceptance only occurs when the seller expressly agrees (e.g., by sending an acceptance confirmation) or ships the goods. A confirmation of order receipt in accordance with § 312i para. 1 no. 3 BGB is legally required, but this merely confirms receipt of the order and does not itself constitute acceptance. Only with the seller’s acceptance does a binding purchase agreement arise.
What statutory information obligations exist before the completion of an order?
According to §§ 312d, 312j BGB and Art. 246a EGBGB, the seller is required to provide the buyer with extensive information before completing the order. The most important information includes the essential characteristics of the goods/services, the total price including any additional costs, information on delivery and payment terms, the statutory right of withdrawal and its conditions, as well as the provider’s identity. For orders via online platforms, consumers must also be clearly informed of the technical steps for concluding the contract, storage of contract text, available languages, and any correction options before submitting the order. These information obligations serve transparency and consumer protection and must be strictly observed— otherwise, there is a risk of warnings and claims for damages.
Can an order be cancelled by the customer, and what legal deadlines apply?
Consumers are generally entitled to a right of withdrawal from distance contracts under § 355 BGB within 14 days of contract conclusion or receipt of the goods. The withdrawal does not require a particular form but should, for evidentiary reasons, be made in writing. The seller is obligated to properly inform about the right of withdrawal. If this is neglected, the withdrawal period is extended by up to twelve months (§ 356 para. 3 BGB). The right of withdrawal is subject to certain exceptions (e.g., customized goods, perishable products, or unsealed hygiene items after opening). Upon timely withdrawal, both sides must immediately return any received benefits.
What are the legal consequences of an incorrect or accidental order?
An incorrect or accidental order is legally considered a declaration of intent, which is generally effective. If there is a mistake in declaration under § 119 BGB (e.g., typo, wrong item specified), the customer may declare annulment but must do so immediately upon becoming aware of the error. If the annulment is successful, the contract is deemed void from the outset, though the party asserting annulment may be liable for reliance damages under § 122 BGB. If it is merely a mistake in motive, the right of annulment does not apply. Alternatively, the right of withdrawal may be available if the customer is a consumer and it is a distance contract.
When does an order become legally binding for the seller?
For the seller, the order only becomes binding with explicit acceptance—usually through order confirmation or dispatch of the goods. Until then, the seller may freely decide whether to accept the customer’s offer. Legally required order confirmations (§ 312i BGB) are generally mere acknowledgments of receipt and do not constitute acceptance. If the seller does not accept the offer, he is under no obligation to deliver. The advertising of goods is generally considered an “invitatio ad offerendum”—an invitation to submit an offer— rather than a binding offer. Legal commitment only arises upon the seller’s declaration of acceptance.
What rights and obligations arise from a legally valid order?
Once an order is legally valid and a purchase contract pursuant to § 433 BGB is concluded, both parties acquire binding rights and obligations: the buyer is obliged to accept and pay for the goods/services ordered, and the seller to deliver the contractual goods on time and in accordance with the contract. There are also ancillary obligations such as proper invoicing, information regarding warranty rights in case of defects pursuant to §§ 434 ff. BGB, and adherence to agreed shipping arrangements. In the event of breaches of contract, claims for damages, rescission, or reduction may arise. The rights to withdrawal or return in accordance with consumer protection provisions are also part of the legal consequences arising from an order.
