When does a freelancer act as an entrepreneur, when as a consumer?

The VIII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the law of sales, has ruled. Civil Senate of the Federal Court of Justice has ruled on the conditions under which a natural person who participates in legal transactions not only as a consumer but also as a self-employed freelancer is to be regarded as a consumer within the meaning of the Civil Code.

On 7 October 2007, the plaintiff, a lawyer, ordered, inter alia, three lamps for a total price of € 766 via the defendant's internet platform. She gave her name (without her professional title) and the address of the "Kanzlei Dr. B." (law firm Dr. B.), where she worked, as the delivery and invoice address. On 19/21 November 2007, the plaintiff declared the revocation of her contractual declaration on the grounds that the lamps had been intended for her private home and that she was therefore entitled to a right of revocation according to the regulations on distance selling (§ 355 para. 1, § 312d para. 1, § 312b para. 1), about which she had not been properly informed by the defendant.

With her action, she sought, among other things, the repayment of the purchase price of €766. The district court upheld the action. The court of appeal dismissed the action and essentially stated that the plaintiff had not acted as a consumer according to the objective recipient's horizon and that she was therefore not entitled to a right of withdrawal according to the provisions of distance selling law.

The appeal allowed by the court of appeal, by which the plaintiff sought the restoration of the judgement of the lower court, was successful.

The Federal Supreme Court has ruled that a natural person who - like the plaintiff - participates in legal transactions both as a consumer (section 13 BGB) and in his or her freelance activity as an entrepreneur (section 14 BGB) is only not to be regarded as a consumer in concrete legal transactions if these transactions can be clearly and unequivocally attributed to his or her commercial or self-employed professional activity. This is the case, on the one hand, if the legal transaction in question is objectively concluded in the exercise of the commercial or independent professional activity of the natural person (section 14 BGB). In addition, legal transactions can only be attributed to the entrepreneurial activity of the natural person if he or she has made this clear to his or her contracting partner through his or her conduct in the specific circumstances of the individual case.

According to these criteria, the plaintiff in the case decided had acted as a consumer when ordering the lamps. According to the findings of the factual instances, the plaintiff had bought the lamps for her private home. There were no concrete circumstances from which the defendant could have concluded beyond doubt that the purchase of the lamps was attributable to the plaintiff's professional sphere. In particular, the defendant could not infer anything unequivocal from the indication of the law firm's address as the delivery and invoice address that she was acting for freelance purposes, as it was not clear from this that the plaintiff was working in the law firm as a lawyer - and not, for example, as a law firm employee.

Judgment of the Federal Supreme Court of 30 September 2009 - VIII ZR 7/09

Lower courts:

AG Hamburg-Wandsbek - Judgment of 13 June 2008 - 716A C 11/08

LG Hamburg - Judgment of 16 December 2008- 309 S 96/08


Source: Press release of the BGH


Goldberg Attorneys at Law

Lawyer Michael Ullrich, LL. M. (Information Law)

Specialist lawyer for information technology law

E-mail: m.ullrich@goldberg.de