A decision by the Federal Court of Justice (BGH) dated June 17, 2015, file number VIII ZR 249/14, is now becoming relevant for all consumers and heating oil suppliers shortly before the start of winter.
The Federal Court of Justice has ruled that any consumer who has concluded a heating oil supply contract via distance selling (order by phone, fax, internet, or email) can revoke their contractual declaration within 14 days, just like with any other distance selling contract, unless the heating oil has already been delivered and is already in their own oil tank.
Previously, there had been differing judgments on whether consumers were entitled to a right of withdrawal for heating oil supply contracts concluded via distance selling. The Federal Court of Justice has now clarified and decided this legal question.
The Federal Court of Justice ruled that consumers are entitled to a right of withdrawal for heating oil supply contracts concluded via distance selling. In distance selling contracts for the supply of heating oil, the consumer's right of withdrawal is not excluded under Section 312d (4) No. 6 of the German Civil Code (BGB) old version. According to the Federal Court of Justice, the defining characteristic of this exception is that the speculative nature constitutes the core of the transaction. However, in the opinion of the Federal Court of Justice, the purchase of heating oil by the consumer does not exhibit such a speculative core. Therefore, according to the Federal Court of Justice, this exception does not apply. The Federal Court of Justice has already recognized the consequences of its judgment and states in the ruling: “Although the right of withdrawal allows the consumer to withdraw from the distance selling contract, subject to Section 312d (4) No. 1 BGB old version, if the heating oil price falls within the withdrawal period, this distribution of risk is inherent in the law and must therefore be accepted (cf. Senate judgment of March 19, 2003 – VIII ZR 295/01, BGHZ 154, 239, 243)“.
Thus, if heating oil prices fall after the heating oil order has been placed, the consumer, provided the other conditions for withdrawal are met, can revoke their declaration (order) and will then no longer be obliged to purchase the ordered and “bought” heating oil at the higher price due to the exercised right of withdrawal.
This allows consumers to save money, while heating oil suppliers may incur significant losses.
It should be noted that the BGH's decision concerned the old regulations on the right of withdrawal, which were valid until June 13, 2014. However, the right of withdrawal applicable since June 13, 2014, also contains a corresponding provision, meaning that the legislative change should not affect the BGH's decision.
Source: Federal Court of Justice ruling of June 17, 2015, file number VIII ZR 249/14
Please do not hesitate to contact us should you have any further questions on this matter.
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
