Some individual agreements are limited: they must not contradict legal prohibitions (§134 BGB) and public order (§138 BGB) and cannot restrict or exclude liability in the event of premeditation, fraudulent dissècation of defects, in case of warranty or under the Product Liability Act (§ 202, 276, 444, 639 BGB). If the product has been found to be defective by the consumer and the defect already existed at the time of delivery by the supplier to his distribution partner, a limitation of the guarantee may be imposed only if the supplier provides other equivalent compensation (Paragraph 478(4) BGB). The details are explained above with each type of distribution channel. Do the antitrust or competition laws in your jurisdiction otherwise restrict the relationship between suppliers and their distributors? How are these laws enforced and by which authorities? Can individuals take legal action in respect of anti-competitive or competition law enforcement? What are the remedies? Can a distribution contract stipulate that the supplier`s price for the distributor is not higher than the lowest price for other customers? Independent commercial agents solicit customers and may (but should not) have the authority to enter into a contract on behalf of the supplier. The supplier sells directly to end customers and bears the distribution risk, but can also control margins. Unlike employees, the agent`s remuneration (“commission”) can be exclusively profit-oriented, i.e. it can only be remunerated in the event of successful canvassing and in relation to turnover. Commercial agents must provide detailed reports on the market. When the commercial agent operates in the EU, the right of protection applies, including the claim for damages.
An agent would be treated as an employee of a supplier if the agent does not act independently. An intermediary acts autonomously when the contractor freely organises his activity and working time, in accordance with all the contractual provisions and the actual activity (Article 84(1) p. 2 of the Criminal Code). This applies mutatis mutandis to other types of distributors. Franchise agreements can be terminated under agency legislation (mutatis mutandis). However, in the specific case, longer time limits may apply, for example. B where the franchisee has made significant investments due to the supplier`s product. The same applies to the guarantees granted to each downstream customer, unless the customer is a consumer, since the legal rights of a consumer cannot be the subject of a contractual agreement. There are no legal requirements for product recalls. According to case law, a manufacturer must monitor its products and take the necessary preventive measures to detect risks to goods protected by law (such as health). The extent and timing of these measures depend on the individual case, in particular the property at risk and the extent of any damage (Federal Court of Justice, order of 16.12.2008). Distribution agreements can determine which party is responsible for a recall and its costs.
Individual agreements are not subject to specific limits….