Key Facts

Blockchain providers frequently sell tokens and NFTs, often without complying with German consumer protection law.
If there are errors in the cancellation policy, buyers can cancel their contracts in the long term, even after 14 days.
According to the EGBGB, companies must inform consumers about the right of withdrawal before the contract is concluded and provide a withdrawal form.
The post-contractual obligations require written confirmation of the content of the contract on a durable medium.
Failure to comply with these obligations can lead to financing gaps and mass reclaims from consumers.
Timely advice from experts is important in order to avoid existential problems in sales processes.
The period for exercising the right of withdrawal ends after 12 months and 14 days at the latest.

Content from blockchain providers in particular, be it coins of various kinds, utility tokens, security tokens or NFTs, is generally sold digitally via the Internet. In the vast majority of cases, however, this does not comply with mandatory German consumer protection law. Partly out of ignorance, partly out of ignorance, partly out of stupidity.

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1. Pre-contractual information

2. Post-contractual obligations

3. The consequences

4. Other defects

4.1. Author: Marian Härtel

However, providers rarely realize that this can lead to long-term revocation options for buyers, regardless, by the way, and possibly even regardless of whether the coins have already been used for services.

One of the most important and probably at the same time most often ignored regulations, concerns the right of withdrawal.

Pre-contractual information

A company is pursuant to Art. 246a $ 1 para. 2 sentence 1 no. 1 EGBGB namely obliges to inform consumers about the conditions and deadlines of the statutory right of withdrawal as well as to provide the model withdrawal form. According to Art. 246a $ 4 EGBGB, this information must be provided to the consumer in a clear and comprehensible manner even before he makes his contractual declaration; in the case of a distance contract, the provision of such adapted information is possible in an informal and adapted manner, but the information must be The information must be easy to find – for example, by displaying the cancellation policy and form in HTML text directly on the provider’s website or by linking directly to it.

Post-contractual obligations

What many providers also forget are the post-contractual obligations. This is because, in the case of distance contracts, the supplier is obliged to § 312f para. 2 BGB obliged to provide the consumer with a confirmation of the contract, in which the content of the contract is reproduced, on a durable medium within a reasonable period after the conclusion of the contract, but no later than when the performance of the service begins. Here it is imperative to consider that a further reference to a link is NOT sufficient, because the entrepreneur must provide the customer with the revocation instruction in a form that cannot be subsequently changed by the entrepreneur. This is conceivable, for example, in the form of a PDF file attached to an e-mail. Of course, this durable medium could also be provided before the contract is concluded. However, the implementation of this approach is seldom too pragmatic, and it is fraught with numerous evidentiary problems.

The consequences

The consequences can be devastating for providers, because if the conditions have not been met, the withdrawal period begins according to § 356 para. 3 BGB not to run. Buyers of tokens or coins who may feel cheated, disappointed about loss of value, or who do not receive adequate performance of some other kind can therefore still revoke the contract and demand their money back well after the known 14 days. This can quickly create a dangerous funding gap for suppliers if this information becomes known and a larger group of buyers collude accordingly. However, there is a deadline here as well. This can be found in § 356 para. 3 sentence 2 BGB. Dhe right of withdrawal shall thereafter expire no later than twelve months and 14 days after the point in time specified in paragraph 2 or § 355 paragraph 2 sentence 2 BGB. So, even as a buyer, you shouldn’t take too long. Since an incorrect (or even completely missing) revocation statement can also lead to warnings, providers should consider curing the situation as soon as possible by sending a correct revocation statement on a durable medium.

Other defects

There are other deficiencies in sales processes that often occur especially with inexperienced startups, foreign entrepreneurs or even poorly advised sellers, and which in the worst case can lead to the mass reversal of sales without the sellers currently being aware of this. As a rule, these are then existential problems. However, I will deal with the shortcomings in next week’s article. However, legal advice should at least always be worthwhile if you do not use absolutely professional systems such as WooCommerce, Shopify, etc.. I have years of experience in these matters and can advise effectively on them.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.