The Federal Court of Justice has ruled on the seller's right to prematurely terminate an eBay auction.
On august 23, 2009, the defendant listed a used digital camera with accessories on eBay for a seven-day auction. The following day, he prematurely ended the listing. At that time, the plaintiff was the highest bidder with an offer of €70.00. He is claiming damages from the defendant amounting to the difference between his bid and the alleged market value of the camera and accessories. The defendant claims that the camera was stolen from him on the afternoon of august 24, 2009.
Section 10 (1) of eBay's General Terms and Conditions, in the version applicable to the present auction, states, among other things:
“Upon expiration of the auction or premature termination of the offer by the seller, a contract for the purchase of the item is concluded between the seller and the highest bidder, unless the seller was legally entitled to withdraw the offer and cancel the existing bids.”
Additionally, the guidelines for the auction process, accessible on eBay's website, list the loss of the offered item as one reason for premature termination of an offer.
The Local Court dismissed the claim for payment of €1,142.96 plus interest and reimbursement of pre-litigation legal fees. The Regional Court rejected the plaintiff's appeal.
The plaintiff's appeal on points of law against this decision was unsuccessful. In the appeal proceedings, it was no longer disputed that the camera had indeed been stolen from the plaintiff. The VIII Civil Senate of the Federal Court of Justice, responsible inter alia for sales law, ruled that the right to withdraw an offer under Section 10 (1) sentence 5 of eBay's General Terms and Conditions also applies in the event of theft of the item offered. The reference in this provision to a "legal" right to terminate an offer is not to be understood as referring solely to the statutory provisions on the rescission of declarations of intent. This is because the guidelines for the auction process, accessible to all auction participants, also cite the loss of the item for sale as a legitimate reason for prematurely terminating an offer. This includes theft. This makes it clear to all auction participants that, according to the "rules of the game" applicable to the auction, the seller is entitled to prematurely terminate their offer even in the event of loss due to theft.
Judgment of the Federal Court of Justice of June 8, 2011 – VIII ZR 305/10
Lower Courts:
Local Court Bad Hersfeld – Judgment of April 26, 2010 – 10 C 162/10
Regional Court Fulda – Judgment of november 12, 2010 – 1 S 82/10
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2011
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
