The plaintiff is the Federal Association of Consumer Centres and Consumer Associations. The defendant trades via the internet trading platform eBay in, inter alia, home textiles, children's and babies' clothing and baby equipment. The plaintiff sued the defendant for injunctive relief against the use of clauses which the defendant used for the conclusion of sales contracts on its eBay website. In the appeal proceedings, the VIII. In the appeal proceedings, the VIII Civil Senate of the Federal Court of Justice, which is also responsible for sales law, had to decide on the validity of three clauses whose use the court of appeal had prohibited the defendant from using.
The first clause reads:
[The consumer may return the goods received without giving any reason within one month by returning the goods]. "The period begins at the earliest with receipt of the goods and this instruction."
The Federal Supreme Court has ruled that the clause is invalid.
It does not contain a sufficient reference to the beginning of the return period and therefore does not meet the statutory requirements for a notice that is as comprehensive, unambiguous and unambiguous as possible from the consumer's point of view (section 312d (1) sentence 2 and (2), section 356 (2), section 355 (2) BGB). Its use as a form creates the risk of misleading consumers and puts them at an unreasonable disadvantage (section 307 (1) sentence 2 BGB).
Pursuant to Section 356(2) and Section 355(2) sentence 1 of the German Civil Code (BGB), the time limit for the return of goods begins at the time when the consumer has been informed in text form about his right to return goods in a clear form, which, inter alia, must contain a reference to the beginning of the time limit. From the point of view of an unbiased average consumer, who is to be taken into account, the clause may give the impression that the notice has already been given if he merely takes note of it without it having been communicated to him in text form - i.e. in a document or in another manner suitable for permanent reproduction in written characters (Section 126b BGB) - in accordance with the statutory requirements. Furthermore, because of the use of the word "earliest", the consumer can infer from the clause that the start of the period is still dependent on further preconditions, but he is left in the dark as to what these preconditions are.
The second clause reads:
"The right of return does not exist in accordance with § 312d para. 4 BGB (German Civil Code), inter alia, in the case of contracts
-for the delivery of goods that are manufactured according to customer specifications or clearly tailored to personal needs or that are not suitable for return due to their nature or can spoil quickly or whose expiry 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, magazines and periodicals."
The Federal Supreme Court has ruled that the clause is effective.
It satisfies the statutory requirements. The defendant is not obliged to indicate separately for each item offered whether the consumer is entitled to a right of return in this respect and consequently to use different versions of its general terms and conditions for distance contracts in electronic commerce. An instruction that leaves it up to the consumer to assess whether the goods purchased by him fall under an exclusion is not misleading. Doubts of interpretation in this respect are not removed by the fact that the defendant, in the case of - in its opinion - distance contracts subject to the statutory exclusions, merely informs the consumer that there is no right of return. In this case, the consumer would receive significantly less information than if he were informed about the statutory wording of the exclusions. Rather, this enables him to form a different opinion and to work towards clarification. The restrictive addition of "inter alia" does not make the clause unclear either, because it only indicates to the consumer that § 312d (4) of the German Civil Code lists further exclusions that are not relevant to the defendant's mail order business.
The third clause reads:
[In the event of an effective return, the services received by both parties must be returned and any benefits derived (e.g. advantages of use) must be surrendered]. "In the event of deterioration of the goods, compensation may be demanded. This does not apply if the deterioration of the goods is exclusively due to their inspection, as would have been possible for the consumer in a shop, for example.
The Federal Supreme Court has ruled that the clause is invalid.
It is true that the law does not require a comprehensive instruction on the legal consequences of exercising the right of return that takes into account all possible cases. However, the instruction must contain a reference to the legal consequences of § 357 paras. 1 and 3 BGB. This is not the case here. Pursuant to § 357 (3) sentence 1 BGB, in the case of exercising a right of return, the consumer must also pay compensation for any deterioration of the goods caused by the intended use, but only if he was informed of this legal consequence and a possibility to avoid it in text form at the latest at the time of the conclusion of the contract. If - as the Court of Appeal assumed - the provision of a notice satisfying the requirements of section 357(3) sentence 1 BGB is excluded from the outset in the case of contracts concluded via eBay, because the contract is concluded without the required notice being provided in text form at the latest at the time of the conclusion of the contract, clause 3 is misleading because it does not contain a notice stating that no compensation is payable for any deterioration in value caused by the intended use of the item. However, even if the defendant could provide a notice in the required text form satisfying the requirements of § 357 para. 3 sentence 1 BGB even until receipt of the goods (§ 312c para. 2 sentence 1 no. 2 BGB), clause 3 would in any event have to indicate that an obligation to pay compensation for a deterioration in value caused by the intended use of the goods only exists under this condition (§ 312c para. 1 BGB in conjunction with § 1 para. 1 no. 10 BGB-InfoV). Such a notice is also missing. The use of the information in the form, which does not comply with the legal requirements, creates the risk of misleading consumers and disadvantages them unreasonably (§ 307 para. 1 sentence 2 BGB).
Judgment of the Federal Court of Justice (BGH) of 9 December 2009 - Ref.: VIII ZR 219/08
Lower courts:
LG Munich I - Judgment of 24 January 2008 - 12 O 12049/07
OLG Munich - Judgment of 26 June 2008 - 29 U 2250/08 (published in MMR 2008, 677)
Appendix:
Excerpts from the applied provisions of the German Civil Code (BGB)
§ Section 312c BGB - Informing the consumer in distance contracts
(1) The trader shall, in good time before the consumer makes his contractual declaration, provide the consumer, in a clear and comprehensible manner appropriate to the means of distance communication used and stating the commercial purpose, with the information for which this is stipulated in the statutory instrument pursuant to Article 240 of the Introductory Act to the Civil Code. In the case of telephone calls initiated by the trader, the trader shall expressly disclose his identity and the business purpose of the contact already at the beginning of each call.
(2) The trader shall also provide the consumer with the terms of the contract, including the general terms and conditions, as well as the information specified in the statutory instrument pursuant to Article 240 of the Introductory Act to the Civil Code, to the extent and in the manner specified therein, in text form, as follows
1. …
2. ... in the case of goods, at the latest by the time of delivery to the consumer.
§ 312d BGB - Right of revocation and return in distance contracts
(1) In the case of a distance contract, the consumer shall have a right of withdrawal under section 355. Instead of the right of withdrawal, the consumer may be granted a right of return under section 356 in the case of contracts for the supply of goods.
(2) The revocation period shall not begin before the fulfilment of the information obligations pursuant to Article 246 § 2 in conjunction with § 1 (1) and (2) of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch), in the case of the delivery of goods not before their receipt by the recipient, in the case of the recurring delivery of similar goods not before receipt of the first partial delivery and in the case of services not before the conclusion of the contract, in derogation of § 355 (3) sentence 1.
(3) ...
(4) The right of revocation shall not apply to distance contracts, unless otherwise stipulated.
1. for the delivery of goods that are manufactured according to customer specifications or are clearly tailored to personal needs or are not suitable for return due to their nature or can spoil quickly or whose expiry date would be exceeded,
2. for the delivery of audio or video recordings or of 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 his contractual declaration by telephone,
4. for the provision of betting and lottery services, unless the consumer has made his contractual declaration by telephone,
5. which are concluded in the form of auctions (section 156),
6. which have as their object the supply of goods or the provision of financial services, the price of which is subject to fluctuations on the financial market over which the trader has no control and which may occur within the withdrawal period, in particular services in connection with shares, unit certificates issued by a capital 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-based services provided at the initiative of the consumer directly by telephone or fax in a single instance, provided that the services are not financial services.
§ 355 BGB - Right of withdrawal for consumer contracts
(1) If a consumer is granted a right of withdrawal by law in accordance with this provision, he shall no longer be bound by his declaration of intent to conclude the contract if he has revoked it in due time. The revocation does not have to contain a reason and must be declared to the entrepreneur in text form or by returning the item within two weeks; timely dispatch is sufficient to meet the deadline.
(2) The period shall commence at the time when the consumer has been informed in text form of his right of withdrawal in a clear form which makes his rights clear to him in accordance with the requirements of the means of communication used and which also contains the name and address of the person to whom the withdrawal is to be declared and a reference to the commencement of the period and the provision in the second sentence of paragraph 1. If the notice is given after the contract has been concluded, the period shall be one month, notwithstanding the second sentence of paragraph 1. If the contract is to be concluded in writing, the period shall not begin to run until the consumer is also provided with a contract document, the consumer's written application or a copy of the contract document or application. If the commencement of the period is disputed, the burden of proof shall be on the trader.
(3) The right of withdrawal expires at the latest six months after conclusion of the contract. In the case of the delivery of goods, the period shall not begin before the day of their receipt by the recipient. By way of derogation from sentence 1, the right of withdrawal shall not expire if the consumer has not been properly informed of his right of withdrawal; in the case of distance contracts for financial services, it shall also not expire if the trader has not properly fulfilled his notification obligations pursuant to section 312c(2)(1).
§ 356 BGB - Right of return for consumer contracts
(1) ...
(2) The right of return can be exercised within the revocation period, which, however, does not begin before receipt of the item, and only by returning the item or, if the item cannot be sent as a package, by requesting its return. § Section 355 (1) sentence 2 shall apply accordingly.
§ Section 357 BGB - Legal consequences of revocation and return
(1) Unless otherwise stipulated, the provisions on statutory withdrawal shall apply mutatis mutandis to the right of withdrawal and the right of return. ...
(2) ...
(3) Notwithstanding Section 346 (2) sentence 1 no. 3, the consumer shall pay compensation for any deterioration in value caused by the intended use of the item if he was informed of this legal consequence and a possibility to avoid it in text form at the latest upon conclusion of the contract. This does not apply if the deterioration is exclusively due to the inspection of the item. § Section 346 (3) sentence 1 no. 3 does not apply if the consumer has been properly informed of his right of withdrawal or has otherwise become aware of it.
(4) There shall be no further claims.
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
