The Federal Supreme Court has ruled on the seller's right to terminate an eBay auction prematurely.
On 23 August 2009, the defendant put a used digital camera and accessories up for auction on eBay for seven days. On the following day he ended the bidding prematurely. At that time, the plaintiff was the highest bidder with a bid of 70.00 €. He claimed damages from the defendant in the amount of the difference between his bid and the market value of the camera and accessories claimed by him. The defendant claimed that the camera had been stolen from him on the afternoon of 24 August 2009.
Section 10(1) of eBay's General Terms and Conditions in the version applicable to the present auction states, inter alia:
"At the end of the auction or in the event of early termination of the offer by the offeror, a contract for the purchase of the item is concluded between the offeror and the highest bidder, unless the offeror was legally entitled to withdraw the offer and cancel the bids on hand."
In addition, the instructions on the auction process available on eBay's website state, among other things, the loss of the item offered as a reason for premature termination of the offer.
The Local Court dismissed the action for payment of € 1,142.96 plus interest and reimbursement of pre-trial legal fees. The district court dismissed the plaintiff's appeal.
The plaintiff's appeal against this was unsuccessful. In the appeal proceedings, it was no longer in dispute that the plaintiff's camera had actually been stolen. The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for the law of sales, ruled that an entitlement to withdraw an offer pursuant to § 10 para. 1 sentence 5 of eBay's General Terms and Conditions also exists in the case of theft of the offered item. The reference in this provision to a "statutory" right to terminate the offer is not to be understood in the sense of a reference only to the statutory provisions on the contestation of declarations of intent. This is because the instructions on the auction procedure available to all auction participants also mention the loss of the object of sale as a justifying reason for early termination of the bid. This also includes theft. This makes it clear to all auction participants that the seller is entitled under the "rules of the game" governing the auction to terminate his bid prematurely even in the event of loss through theft.
Judgment of the Federal Supreme Court of 8 June 2011 - VIII ZR 305/10
Lower courts:
AG Bad Hersfeld - Judgment of 26 April 2010 - 10 C 162/10
Fulda Regional Court - Judgment of 12 November 2010 - 1 S 82/10
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
