The plaintiff is the Federation of German Consumer Organizations. The defendant conducts trade, including home textiles, children's and baby clothing, and baby equipment, via the eBay online trading platform. The plaintiff seeks an injunction against the defendant for using clauses in the conclusion of purchase contracts via its eBay website. In the appeal proceedings, the VIII Civil Senate of the Federal Court of Justice, responsible inter alia for sales law, had to rule on the validity of three clauses whose use the appellate court had prohibited the defendant from using.
The first clause states:
[The consumer may return the received goods within one month without stating reasons by sending them back.] “The period begins no earlier than upon receipt of the goods and this instruction.”
The Federal Court of Justice has ruled that the clause is invalid.
It does not provide sufficient information on the commencement of the return period and therefore fails to meet the legal requirements for instructions that are as comprehensive, unambiguous, and clear from the consumer's perspective as possible (§ 312d para. 1 sentence 2 and para. 2, § 356 para. 2, § 355 para. 2 BGB). Its use in a standard form creates a risk of misleading consumers and unduly disadvantages them (§ 307 para. 1 sentence 2 BGB).
According to § 356 para. 2, § 355 para. 2 sentence 1 BGB, the return period commences when the consumer has been provided with clearly structured instructions on their right of return, which must include, among other things, information on the commencement of the period, in text form. From the perspective of an unbiased average consumer, which is the standard to be applied, the clause can create the impression that the instruction has already been given merely by the consumer taking note of it, without it having been communicated to them in text form in accordance with legal requirements – i.e., in a document or in another manner suitable for permanent reproduction in characters (§ 126b BGB). Furthermore, while the consumer can infer from the word “earliest” in the clause that the commencement of the period depends on further conditions, they are left unclear as to what these conditions are.
The second clause states:
“The right of return, in accordance with § 312d para. 4 BGB, does not apply, among others, to contracts
-for the delivery of goods that are manufactured according to customer specifications or are clearly tailored to personal needs, or that are not suitable for return due to their nature, or can spoil quickly, or whose expiration date would be exceeded;
-for the delivery of audio and video recordings (including CDs or DVDs) or software, provided that the delivered data carriers have been unsealed by the consumer, or
-for the delivery of newspapers, periodicals, and magazines.”
The Federal Court of Justice has ruled that the clause is valid.
It complies with statutory requirements. The defendant is not obliged to state separately for each item offered whether the consumer has a right of return in that respect, and consequently, to use different versions of its General Terms and Conditions for distance contracts in electronic commerce. An instruction that leaves it to the consumer to assess whether the goods acquired fall under an exclusion criterion is not misleading. Any existing doubts regarding interpretation in this respect are not eliminated by the defendant merely informing, in the case of distance contracts falling under the exclusion criteria – in its opinion – that no right of return exists. In this case, the consumer would receive significantly less information than if informed about the statutory wording of the exclusion criteria. Instead, this enables the consumer to form a differing opinion and seek clarification. Furthermore, the clause is not rendered unclear by the restrictive addition of „among others“, as this merely indicates to the consumer that Section 312d (4) of the German Civil Code (BGB) lists further exclusion criteria not relevant to the defendant's mail-order business.
The third clause reads:
[In the event of an effective return, the mutually received performances are to be returned and, if applicable, any derived benefits (e.g., advantages of use) are to be surrendered.] “In the event of deterioration of the goods, compensation for value may be demanded. This does not apply if the deterioration of the goods is exclusively attributable to their inspection, as would have been possible for the consumer in a retail store, for example.”
The Federal Court of Justice has ruled that the clause is invalid.
While the law does not require comprehensive instruction covering all conceivable scenarios regarding the legal consequences arising from the exercise of a right of return. However, the instruction must include a reference to the legal consequences of Section 357 (1) and (3) of the German Civil Code. This is not the case here. According to Section 357 (3) sentence 1 of the German Civil Code, in the event of exercising a right of return, the consumer must also provide compensation for value for any deterioration resulting from the proper use of the item, but only if they were informed in text form of this legal consequence and a way to avoid it, at the latest upon conclusion of the contract. If – as the appellate court assumed – providing a notice that satisfies the requirements of Section 357 (3) sentence 1 of the German Civil Code is precluded from the outset for contracts concluded via eBay, because the contract is formed without the necessary notice being provided in text form at the latest upon conclusion of the contract, then Clause 3 is misleading because it does not contain a notice that no compensation for value is to be provided for deterioration resulting from the proper use of the item. However, even if the defendant could provide a notice satisfying the requirements of Section 357 (3) sentence 1 of the German Civil Code in the required text form even up to the receipt of the goods (Section 312c (2) sentence 1 no. 2 BGB), Clause 3 would at least have to indicate that an obligation to pay compensation for value for deterioration resulting from the proper use of the item only exists under this condition (Section 312c (1) BGB in conjunction with Section 1 (1) no. 10 BGB-InfoV). Such a notice is also missing. The standardized use of instructions that do not comply with statutory requirements creates a risk of misleading consumers and disadvantages them unduly (Section 307 (1) sentence 2 BGB).
Judgment of the Federal Court of Justice (BGH) of December 9, 2009 – Ref.: VIII ZR 219/08
Lower Courts:
Regional Court Munich I – Judgment of January 24, 2008 – 12 O 12049/07
Higher Regional Court Munich – Judgment of June 26, 2008 – 29 U 2250/08 (published in MMR 2008, 677)
Appendix:
Excerpt of the applied provisions of the German Civil Code (BGB)
Section 312c BGB – Consumer Information in Distance Contracts
(1) The entrepreneur must provide the consumer, clearly and comprehensibly and stating the commercial purpose, with the information specified in the legal ordinance pursuant to Article 240 of the Introductory Act to the German Civil Code, in a manner appropriate to the remote communication means used, and in due time before the consumer's declaration of contract. In telephone conversations initiated by the entrepreneur, the entrepreneur must explicitly disclose their identity and the commercial purpose of the contact at the beginning of each conversation.
(2) Furthermore, the entrepreneur must provide the consumer with the contract terms, including the General Terms and Conditions, as well as the information specified in the legal ordinance pursuant to Article 240 of the Introductory Act to the German Civil Code, to the extent and in the manner specified therein, in text form, namely
1. …
2. … for goods, at the latest upon delivery to the consumer.
Section 312d BGB – Right of Withdrawal and Return in Distance Contracts
(1) In a distance contract, the consumer has a right of withdrawal according to Section 355. Instead of the right of withdrawal, the consumer may be granted a right of return according to Section 356 for contracts concerning the delivery of goods.
(2) Notwithstanding Section 355 (3) sentence 1, the withdrawal period does not begin before the fulfillment of the information obligations pursuant to Article 246 Section 2 in conjunction with Section 1 (1) and (2) of the Introductory Act to the German Civil Code; for the delivery of goods, not before their receipt by the recipient; for the recurring delivery of similar goods, not before the receipt of the first partial delivery; and for services, not before the conclusion of the contract.
(3) …
(4) Unless otherwise stipulated, the right of withdrawal does not apply to distance contracts
1. for the delivery of goods that are manufactured according to customer specifications or are clearly tailored to personal needs, or that are not suitable for return due to their nature, or that can spoil quickly, or whose expiration date would be exceeded,
2. for the delivery of audio or video recordings or software, provided that the delivered data carriers have been unsealed by the consumer,
3. for the delivery of newspapers, periodicals, and magazines, unless the consumer has made their contractual declaration by telephone,
4. for the provision of betting and lottery services, unless the consumer has made their contractual declaration by telephone,
5. concluded in the form of auctions (Section 156),
6. that concern the delivery of goods or the provision of financial services whose price is subject to fluctuations in the financial market over which the entrepreneur has no influence and which may occur within the withdrawal period, in particular services related to shares, investment certificates issued by an investment company or a foreign investment company, and other tradable securities, foreign exchange, derivatives, or money market instruments, or
7. for the provision of telecommunication-supported services, rendered directly by telephone or fax at the consumer's instigation in a single transaction, unless they are financial services.
§ 355 German Civil Code (BGB) – Right of Withdrawal in Consumer Contracts
(1) If a consumer is granted a right of withdrawal by law under this provision, they are no longer bound by their declaration of intent to conclude the contract if they have exercised this right within the prescribed period. The withdrawal does not require a statement of reasons and must be declared to the entrepreneur in text form or by returning the goods within two weeks; timely dispatch suffices to meet the deadline.
(2) The period commences when the consumer has received a clearly formulated instruction regarding their right of withdrawal in text form, which explicitly outlines their rights in accordance with the requirements of the communication medium employed. This instruction must also include the name and address of the party to whom the withdrawal is to be declared, along with a reference to the commencement of the period and the provision of paragraph 1 sentence 2. If the instruction is provided after contract conclusion, the period shall be one month, notwithstanding paragraph 1 sentence 2. If the contract requires a written form, the period does not begin until the consumer has been provided with a contract document, the consumer's written application, or a copy thereof. Should the commencement of the period be disputed, the burden of proof rests with the entrepreneur.
(3) The right of withdrawal expires no later than six months after the contract's conclusion. For the delivery of goods, the period does not commence before the day of their receipt by the consignee. Notwithstanding sentence 1, the right of withdrawal does not lapse if the consumer has not been duly informed about their right of withdrawal; furthermore, for distance contracts concerning financial services, it does not lapse if the entrepreneur has failed to properly fulfill their notification obligations pursuant to § 312c para. 2 no. 1.
§ 356 German Civil Code (BGB) – Right of Return in Consumer Contracts
(1) ...
(2) The right of return may be exercised within the withdrawal period, which, however, does not commence prior to receipt of the goods. This right is exercised either by returning the goods or, if the goods cannot be dispatched as a parcel, by requesting their collection. § 355 para. 1 sentence 2 shall apply mutatis mutandis.
§ 357 German Civil Code (BGB) – Legal Consequences of Withdrawal and Return
(1) Unless otherwise stipulated, the provisions concerning the statutory right of rescission shall apply mutatis mutandis to the right of withdrawal and the right of return. …
(2) …
(3) Notwithstanding § 346 para. 2 sentence 1 no. 3, the consumer shall provide compensation for any deterioration resulting from the proper use of the item, provided they were informed in text form, at the latest upon contract conclusion, of this legal consequence and a means to avert it. This provision does not apply if the deterioration is solely attributable to the examination of the item. § 346 para. 3 sentence 1 no. 3 shall not apply if the consumer has been duly informed of their right of withdrawal or has otherwise acquired knowledge thereof.
(4) No further claims shall exist.
Source: Press release of the Federal Court of Justice
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
