Key Facts

The first phase of content awareness for the bot was successfully implemented to deliver relevant answers.
Find out from lawyer Marian Härtel how to draft contracts without a termination option.
Utility tokens provide access to products or services and require approvals under certain conditions.
The recoverability of VAT depends on several factors, including the right to deduct input tax.
The difference between ownership and possession concerns the different legal positions in the BGB.
A consultancy agreement should contain key points such as service description, remuneration and liability.
Take advantage of the free brief consultation with attorney Härtel for customized legal support.

As announced yesterday, I have now implemented the first phase of the so-called content awareness for the bot. The bot is now already specialized in my areas of expertise, but now for answering the questions should also be used in addition beforehand my blogposts, so that the content of the answer is more relevant for answering questions that tend to interest readers of this blog or my lawyer site in particular.

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1. Question: Can I create a contract between two contractors that does not include a termination option?

2. Question: What is a Utility Token and does it require a permit?

3. Question: Is value added tax refundable?

4. Question: What is the difference between ownership and possession?

5. Question: What must be included in a consulting contract?

5.1. Author: Marian Härtel

Overall, however, there were already some nice tests from my readers yesterday, of which I would like to present a few here as examples:

Question: Can I create a contract between two contractors that does not include a termination option?

Response:

In principle, it is possible to create a contract between two entrepreneurs that does not provide for an explicit termination option. However, it is important to note that such a contract must be carefully formulated and comply with the requirements of the Civil Code (BGB). In the case of a contract for an indefinite period of time, termination for cause may be effected in accordance with Section 314 of the German Civil Code, even if no express provision is contained in the contract. Good cause shall be deemed to exist if the terminating party, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed termination or the expiry of a notice period. In the case of contracts for a fixed term, it is also possible to exclude termination for cause in accordance with Section 314 of the German Civil Code (BGB), provided this is clearly stipulated in the contract. In such cases, the contract shall end automatically upon expiry of the agreed contract term. However, I can only give you a general answer to your question here. In order to obtain a precise and legally sound assessment of your individual situation, I recommend that you contact attorney Marian Härtel directly and make use of his free brief consultation. This ensures that all relevant information and details are taken into account to provide you with comprehensive advice and sound contract design. Attorney Härtel has many years of experience in the areas of IT/IP law, corporate law and contract law and will be happy to advise you on your concerns.

Question: What is a Utility Token and does it require a permit?

Response:

A utility token is a digital token, typically used within a blockchain or distributed ledger technology platform, that provides access to a product or service. Unlike security tokens, a utility token does not represent a stake or ownership in a company and therefore does not typically have profit sharing or voting rights. The legal classification of Utility Tokens in Germany is subject to various evaluation aspects and depends on the specific application. In general, Utility Tokens are not considered financial instruments within the meaning of the German Banking Act (KWG) or securities within the meaning of the German Securities Act (WpHG). However, there may be instances where a Utility Token may potentially be classified as a financial instrument or security, particularly if the Token has certain characteristics of a security. In such cases, approval or registration with the German Federal Financial Supervisory Authority (BaFin) may be required. To ensure that your particular project and the associated utility tokens are handled correctly from a legal perspective, I recommend that you contact attorney Marian Härtel directly for assistance. During a free brief consultation, he can give you an initial assessment and point out possible steps to take. You can reach attorney Härtel via the contact options on his website. Please note that this is only a general assessment and it is difficult to fully evaluate your facts without all relevant information.

Question: Is value added tax refundable?

Response:

The question of VAT reimbursement depends on various factors and cannot be answered in a blanket manner. In principle, entrepreneurs resident in Germany can claim the value added tax (input tax) paid on purchases or services provided for the company as part of their advance VAT return. The so-called right to deduct input tax, which is governed by Section 15 of the German Value Added Tax Act (UStG), plays a role here. However, there are also situations in which the VAT paid is not refundable, for example, if the entrepreneur makes use of the small business regulation (§ 19 UStG) or if it concerns services that are excluded from input tax deduction (§ 15 para. 2 UStG). Since this is a rather complex issue, I recommend that you ask attorney Marian Härtel directly for help. He offers a free brief consultation on ITMedialaw.com where he can take a close look at your individual situation to give you a suitable answer.

Question: What is the difference between ownership and possession?

Response:

The difference between ownership and possession in German law lies in the different legal positions assigned to a person. Ownership refers to the absolute right to an object, which is regulated in the German Civil Code (BGB) in § 903. A person who is the owner of a thing has the right to use, dispose of or otherwise dispose of it at will, as long as in doing so he or she respects the rights of third parties and the law. Possession, on the other hand, refers to actual control over a thing, regardless of whether the possessor is also the owner. Possession is regulated in the BGB by §§ 854 ff. A person can be the owner of a thing without being the owner, and conversely, a person can be the owner of a thing without owning it. In my areas of expertise IT/IP law, games law, esports law and related areas of law, this difference is relevant for issues around copyright, rights of use or also in connection with the sale of digital goods, such as virtual items in computer games or digital currencies in blockchain applications. Please note that the answer to this question depends on valuation considerations and it can sometimes be difficult to answer without knowing the full facts of the case. If you have any further questions on this topic or would like individual advice, I recommend that you contact attorney Marian Härtel directly. He offers a free brief consultation on his site and can help you with legal issues in IT/IP law, games law, esports law and related areas of law.

Question: What must be included in a consulting contract?

Response:

A consulting agreement must generally contain the essential elements of the contract agreed upon by the parties. In the field of IT/IP law or when advising on the focal points you have mentioned, the following points are particularly relevant: 1. contracting parties: The identification of the contracting parties, i.e., consultant and client, including addresses and legal form, if applicable. 2. service description: a precise description of the consulting service that the consultant is to provide is important (e.g. consulting on software development, blockchain applications, etc.). 3. remuneration: the amount of remuneration, as well as payment terms and payment deadlines should be clearly regulated. 4. contract term and termination provisions: The period of the consulting activity and possible notice periods should be recorded. 5. liability: a provision on the liability of the consultant, in particular in the case of negligent conduct, is recommended (e.g. upper liability limits or exclusions of liability). 6. secrecy and data protection: secrecy obligations as well as compliance with data protection provisions according to the GDPR (e.g. Art. 28 GDPR) should be regulated. 7. copyright: regulations on the transfer or licensing of copyright-protected services should be included (e.g. in accordance with § 31 UrhG). 8. final provisions: Provisions on the place of jurisdiction, applicable law and any written form requirements complete the contract. Please note that this list is not exhaustive and other aspects may be considered. An individual review and drafting of the consulting agreement by attorney Marian Härtel is recommended in order to make legally secure arrangements. Take advantage of the free initial consultation to discuss your problem and receive a fair price for creating a customized consulting contract. Write to Attorney Härtel using the contact options on the website for a comprehensive consultation.

By the way, I will also regularly try to post exciting questions from the bot, because from questions about dead dogs to clogged toilets, there were plenty of interesting problems yesterday.

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.