Online Contracts in Germany: When Is the Contract Concluded?

"From a hundred rabbits you can never make a horse,

and a hundred suspicions never make a proof."

Fyodor Mikhailovich Dostoevsky, Crime and Punishment

Many people know from their own experience that e-learning is more highly developed in Europe than on any other continent. Germany, like a number of other European countries — Finland, Spain, France and Italy, for example — recognised the potential of distance learning long ago, and it is still widely seen as having a great future. The German education system includes a virtual university, the Virtuelle Fachhochschule (Virtual University of Applied Sciences), an alliance of 15 German and 4 Swedish institutions offering degree programmes in a range of applied sciences. The institutions providing interactive teaching are located in cities including Freiburg, Mannheim, Karlsruhe, Heidelberg, Lübeck, Brandenburg, Berlin and Hagen. This kind of study is often chosen by students whose circumstances do not allow them to study full-time and attend classes in person on a regular basis. The reasons vary: financial considerations, work commitments, family circumstances. Distance learning gives students the opportunity, if they wish, to obtain a high-quality first or further qualification from anywhere in the world without leaving home.

In such cases, the contract for distance-learning services between the provider and the consumer is usually concluded "at a distance" — that is, without the parties being physically present together, and solely by means of distance communication (above all letters, catalogues, telephone calls, e-mails and similar means, pursuant to § 312c Abs. 2 BGB). It is important to bear in mind that the conclusion of any contract, and of a distance contract in particular, requires the deliberate consent of both parties, expressed in the form of an offer (Angebot) and an acceptance (Annahme). In other words, the contract is deemed concluded at the moment one party accepts the other party's offer. What do offer and acceptance look like when a contract is concluded online? The educational provider publishes information on its website. The consumer selects a specific programme on the website and submits an application — this is the offer to conclude a contract for the services in question. The educational institution then confirms that it can provide the services on the stated terms, which essentially amounts to agreeing to conclude the contract — the acceptance — after which the contract can be regarded as validly concluded.

Under §§ 145 ff. BGB, a transaction can only be regarded as concluded on the proposed terms if both parties have deliberately consented to entering into the contract. If one party lacks such deliberate consent, or its existence cannot be proven, that party cannot be compelled to perform the contract. In this article, we would like to describe a case from our legal practice in which we were able to help a client assert his rights and show that, from a legal standpoint, no contractual relationship existed.

A young man — let's call him Konstantin — came to us for a consultation. He had moved to Germany from a small town in the Volga region under the programme for Spätaussiedler (ethnic German late resettlers) and had been living here for a relatively short time. Konstantin, who spoke German quite confidently, had found a permanent job at a local travel agency specialising in Russian-speaking customers. At the same time, he was considering vocational training in tourism and would occasionally browse the websites of educational institutions offering various training programmes. One evening, Konstantin was once again looking for a suitable programme. He came across the website of an education centre that offered courses, among other formats, as distance learning. The website listed numerous programmes of differing length and intensity. One of them, a training course for middle managers in the tourism industry, caught the young man's interest so much that — without fully realising the consequences of what he was doing — he went ahead with the online registration. As he entered his details into the form on the website, our future client was convinced that this step was not binding on him and would have no legal consequences. Nevertheless, just two days later Konstantin received by post a confirmation of his enrolment in the programme he had chosen, information material and an invoice for 5,000 euros for the first year of training. At first, the young man did not respond to this letter and attached little importance to it — he still regarded the correspondence as purely informational and non-binding. Unfortunately, the provider saw the situation differently. After the client had ignored the first, second and third payment reminders, Konstantin was served with a formal written demand (Mahnschreiben) to pay for the educational services within 10 working days. Otherwise, the institution threatened, it would immediately take the matter to court to enforce the monetary claim.

With this intimidating letter in hand, Konstantin turned to our law firm to protect his interests. The attorney in our firm who handles civil-law matters set to work immediately and asked the client to provide all relevant documents. On the one hand, from a purely formal point of view the contract could be regarded as concluded, since binding documents had in fact been exchanged between the two sides. In this case there was, de facto, both an offer on Konstantin's part — expressed by filling in and submitting the application for the services — and an acceptance on the part of the educational institution, expressed by accepting that application for processing and sending out information material about the course together with the corresponding invoice. On the other hand, German civil law requires a deliberate declaration of intent (Willenserklärung) by each of the contracting parties before a transaction can be regarded as concluded on the stated terms. If such a declaration of intent is missing, or the opposing party cannot prove it, the finding that a contract was concluded can be challenged. In this case, by filling in the application and sending it to the organisation providing the educational services, Konstantin had not expressed any deliberate consent to entering into a binding contractual relationship. Moreover, the company that had sent the demand had no evidence whatsoever identifying our client as the consumer of the educational services in question. Accordingly, a party demanding performance of obligations under a contract for educational services must, in the event of a dispute, produce corresponding evidence and, where necessary, convince the court that the contract was actually concluded.

The attorney representing Konstantin set out all of these arguments in detail in his reply, backed by a comprehensive body of evidence and references to the applicable law and case law. To date, no further demands have been received from the educational institution. The company is, of course, entitled to take legal action to protect its interests. If it does, we will continue to represent our client's interests actively in court, and we are confident that our prospects of success in this matter are genuinely good.

The task of an experienced and qualified attorney is to examine every case from a legal perspective, identify the factors that serve to protect the interests of the client we represent, and select the statutory provisions and case law on which a strong line of defence can be built, both at the pre-trial stage and in court proceedings. Our attorneys' many years of successful work and high level of qualification allow us to say with confidence that each of our clients receives high-quality legal support and can be sure that every legal means capable of achieving the desired positive outcome will be used in handling their case.

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