You are buying an apartment for the first time and find references to consumer protection on the internet. In conversation this quickly becomes the statement that private buyers always have these rights. For a reliable contract review, however, the roles of both parties and the specific transaction must be determined. The private residential intention alone does not answer the entire scope of application.
The law asks about the specific transaction
§1 para 1 KSchG describes in its first main section legal transactions between one party for whom the transaction belongs to the operation of their business and another party for whom this does not apply. Para 2 contains the concept of enterprise. [VERBRAUCHER]
This classification therefore does not concern only a personal occupational or everyday designation. In the consultation, describe who will actually buy and sell and to which context the respective transaction is to be assigned. A friendly privately conducted sales conversation does not prove a particular legal role.
Capture both sides and separate contracts
Our editorial recommendation: Create a short overview of the contracts actually planned. A property purchase, a separate brokerage agreement and the financing can have different contracting parties. The classification of one contract must not be transferred unchecked to all others.
A private seller will, for example, not thereby alone become a commercial contracting partner in the purchase agreement simply because a company is involved in the brokerage. Whether and which consumer protection rule applies in one of the transactions must be examined in accordance with the respective legal relationship. This article does not assess any specific seller conclusively.
Describe planned letting and preparatory actions openly
If you intend to let, use commercialy or acquire through a company, this information belongs in the consultation from the outset. But do not draw the reverse blanket conclusion yourself from this, that any future letting must automatically exclude any consumer status.
§1 para 3 contains a special rule for certain transactions of natural persons prior to commencing their business in order to create the prerequisites for it. [VERBRAUCHER] What significance it has in your case cannot be decided here from a number of apartments or from the word “investment” alone. A complete classification of entrepreneurial activity and case law is not provided in this article.
Fictional case: The standard notice relates to another contract
A purchaser receives a consumer protection notice from a brokerage company. She assumes that this automatically means that all contractual clauses of her purchase from another private person must be assessed under the same rules. The concrete contracting parties and legal relationships were mixed up in doing so.
For the review she now separates brokerage, purchase and financing. The consultation can then classify each transaction with its actual parties. The example does not claim complete lawlessness in private purchases nor the invalidity of any particular clause. It corrects the incorrect transfer of an assumed role.
Only then talk about specific rights
The classification of roles is a basis, not a ready-made contract approval. It does not, without further review, imply a particular right of withdrawal or a certain procedural outcome. For important clauses, have explained which provision is applicable and for what reason. This way you compare concrete rights and obligations instead of two blanket labels such as “private” and “commercial”.