In a decision today, the Federal Court of Justice dealt with the question of whether a consumer who installs a catalytic converter purchased in an online shop in his or her vehicle and then undertakes a test drive is obliged, after the subsequent revocation of his or her declaration of purchase, to pay the seller compensation for the deterioration of the returned item.
The facts:
In 2012, the plaintiff ordered a catalytic converter together with a mounting kit for a total price of € 386.58 via the defendant's website, which operates an online shop for car parts. After receiving it, he had the catalytic converter installed in his motor vehicle by a specialist garage. When he noticed after a short test drive that the car no longer performed as it had before, he revoked his declaration of intent to conclude a contract of sale in due time and returned the catalytic converter, which now showed clear signs of use and installation, to the defendant. The defendant then informed him that the catalytic converter had become worthless as a result of its use, which was why the defendant had a corresponding claim for compensation and would not refund the purchase price.
Course of the process:
The district court granted the claim for repayment in its entirety. On appeal by the defendant, the Regional Court amended the judgement of the first instance and only partially granted the claim because the defendant had effectively offset the claim for repayment with a claim for compensation according to § 357 para. 3 BGB old due to the deterioration of the catalytic converter.
With the appeal admitted by the Regional Court, the plaintiff continues to demand the full repayment of the purchase price, while the defendant, with its cross-appeal, wants an even higher loss in value of the catalytic converter to be taken into account.
The decision of the Federal Supreme Court:
The VIII. Civil Senate of the Federal Court of Justice has ruled that in the case of distance selling, the consumer is not permitted to handle the purchased item without compensation for its value before exercising his right of withdrawal, which not only leads to deterioration of the goods, but also goes beyond the measures required to compensate him for lost opportunities for knowledge in stationary trade.
It is true that it is the declared objective of the national and European legislator that in distance selling transactions the consumer may not only inspect the object of purchase before deciding on the exercise of his right of withdrawal, but may also subject it to an examination as to its characteristics and functioning without having to fear a claim for a loss of value resulting therefrom (§ 357 (3) sentence 1 no. 1 BGB aF*). This serves to compensate for disadvantages due to the consumer's lack of testing and other knowledge possibilities in distance selling, which would be given in stationary trade. Even if the customer is often not able to unpack, assemble and try out the goods in a shop, he typically has samples as well as demonstration and consultation possibilities at his disposal in order to get a direct impression of the goods and their characteristics.
However, a product which - as in the present case, the catalytic converter - is intended to be installed in another object, cannot normally be checked by the buyer for its function in the context of the overall object, even in a retail shop. The plaintiff would not have been able to try out the catalytic converter in question in a stationary shop - not even in the form of a sample vehicle equipped with it - in such a way that he would have been able to test its effectiveness on his or a comparable motor vehicle after installation. Rather, in the case of a purchase in a stationary trade, the plaintiff would have been limited to taking a detailed look at the selected catalytic converter model or a corresponding sample and to comparing the catalytic converter with alternative models or the previously used part. In addition, he could have asked the sales staff, if necessary, about the technical data of the selected model and obtained expert advice about its advantages or disadvantages compared to other models. The measures taken by the plaintiff go beyond compensating him for such lost opportunities of knowledge in the shop. Rather, they represent an - albeit temporary - putting into use of the catalytic converter, which was intended to provide him with an examination of the concrete effects of the purchased car part on the driving style of his vehicle in practice, which was not available to him under any circumstances in stationary trade. Such a better position of the consumer in online trade is neither intended by the national nor by the European legislator. The defendant would therefore be entitled to a claim for compensation against the plaintiff for the deterioration that occurred if - which has not yet been established - the requirements of § 357 para. 3 sentence 1 no. 2 BGB aF were also met.
For these reasons, the senate set aside the appeal judgement and referred it back to the court of appeal for a new hearing and decision. The Court of Appeal correctly assumed that the plaintiff had exceeded the limits of the right of examination to be granted to him free of value substitution. However, it has not yet been established whether the plaintiff had already been informed in text form of the legal consequence of a possible obligation to pay compensation at the time of the conclusion of the contract - which the law in § 357 para. 3 sentence 1 no. 2 BGB aF required for a claim for compensation by the seller - at the latest at the time of the conclusion of the contract.
Judgment of the Federal Supreme Court of 12 October 2016 - VIII ZR 55/15
Lower courts:
Lichtenberg Local Court - Judgment of 24 October 2012 - 21 C 30/12
Berlin Regional Court - Judgment of 16 February 2015 - 84 S 96/12
Source: Press release of the BGH
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
