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Update Commercial 2024

01.03.2024

With the Noerr Commercial Update for 2024 our team is pleased to present you with the most significant recent developments in commercial law.

The year 2023 saw not only legislative initiatives at the European and German levels such as the planned Late Payment Directive, but also numerous judgements that will have a strong impact on contract drafting. They deal with topics such as insolvency-based rescission clauses, including place of jurisdiction clauses via hyperlink, subsequent exclusion of the UN CISG and no-fault B2B vendor liability.

In addition, digital consumer protection law is becoming more and more complex. Compulsory consumer rights such as the right to withdraw from a contract, wide-ranging notification and transparency duties and detailed requirements for general terms and conditions are posing growing challenges for companies. Breaches of statutory requirements can result in not only the loss of rights and collective actions (e.g. representative actions) but also stiff penalties.

Despite progress in implementing new distribution models, many manufacturers and importers continue to rely on the established networks of authorised dealers and service partners. However, differences of opinion can arise between the companies and some of their dealers in regard to framework conditions such as setting margins and bonus schemes. Similar conflict potential also exists when sales and distribution partners leave following the termination with due notice of their dealership or service partner contracts. These “classics” in dealership law were once again in the spotlight of higher-court case law in 2023 and promise to have significant impact in the future.

In 2023, as many as three judgments related to franchise law were handed down. The Munich Higher Regional Court (OLG München) considered the issue of whether a fast-food restaurant franchisee’s heiress had to allow card payments in the restaurants. The ruling addressed the effectiveness of system adjustment clauses in franchise contracts. The Berlin Higher Regional Court (KG Berlin) ruled on the validity of an agreement on jurisdiction with a franchisee who was a new entrepreneur. A ruling by Darmstadt Regional Court (LG Darmstadt) focused on a mediation clause in a franchise agreement.

In rulings regarding factoring, the courts considered the admissibility of no-fault guarantees of the validity of receivables and clarified that a factoring client’s duties under section 402 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) in the event of debtor insolvency do not form the basis for attributing the client’s knowledge to the factor in analogous application of section 166 of the German Civil Code. Unrelated to factoring, the German Federal Court of Justice (Bundesgerichtshof) ruled on standard-form assignment clauses.

Our Noerr Commercial Update 2024 will provide you with a comprehensive overview of these and other topics, including the latest developments in competition law regarding sales and distribution, commercial agency law and the law related to logistics.