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Die Zugabe als Werbung in der Entwicklung der europäischen Rechtsvereinheitlichung

By Saskia Wagner


In this paper the competitive-legal issue is discussed: the free gift. The free gift is a special form of the package deal and is existent, if a commodity or service is offered at no extra cost in addition to a nongratuitous staple. The acquisition of the free gift has to be contingent on the conclusion of the deal, i.e. an inner connection is necessary in such a manner that the free gift with sales is offered with regard to the acquisition of the staple. Because of this dependence it is impartially adequate to influence the customer in his decision to acquire the staple.In the past, the free gift as a means of sales promotion was considered controversial and was principally forbidden by the regulation governing free gifts with sales. Based on the approach that competition should be oriented on quality and price-worthiness, the free gift was seen as an unobjective instrument which was capable to tempt the consumer to irrational contemplations and decisions.In July 2001, the regulation governing free gifts with sales was cancelled without substitution. Since then, free gifts are generally allowed. With the abrogation of the regulation governing free gifts with sales the legislator took into account the modified consumer approach. Since the mid nineties, the jurisdiction increasingly applied the concept of a judicious average consumer, who is attentive to the situation and capable to critically encounter the attraction force of free gifts.Free gifts are subject to the general competitive-legal boundaries of the law against unfair competition. In the summer of 2004, this law experienced a fundamental alteration. The legitimacy of free gifts is indeed partially regulated in the new law against unfair competition, but not exclusively.The subject of this paper, besides to give an overview of the law-historical development of free gifts, is the legal evaluation of these on the basis of the new law against unfair competition in particular.Furthermore, an outlook on the legal position in Austria is conducted. Until the German law against unfair competition was altered the regulation for free gifts with sales in Austria was more liberal, and therefore an interesting object of comparison. After the new German law against unfair competition came into force, the situation was exactly vice versa, as since then free gifts are treated more liberally in Germany than in Austria.The objective and the focus of this paper is to emphasize in what constellations free gifts are allowed to be offered by advertising companies, and where these free gifts meet legal boundaries

Topics: info:eu-repo/classification/ddc/340, Recht, Deutschland, Zugabeverordnung, Zugabe, Koppelungsgeschäft, advertisement, free gift
Publisher: Publikationsserver der RWTH Aachen University
Year: 2006
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Provided by: RWTH Publications
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