According to the OLG Nuremberg, a single order button with the designation "Buy now" is not sufficient if the consumer is to make a binding contractual declaration with regard to both a purchase contract and a continuing obligation.
How many order buttons does an online shop need?
The defendant sells food, cosmetics and household articles in its online shop. However, it was only possible to place an order if the customers simultaneously concluded a membership with the defendant, which was subject to a charge, at least after the expiry of a test phase. At the end of the order process, there was an order button with the designation "Buy now". There was no separate order button for an explicit contractual declaration with regard to the membership.
The plaintiff, Verbraucherzentrale Baden-Württemberg e.V., ultimately issued a warning to the defendant without success and brought an action before the Regensburg Regional Court because of the subject matter of the order button and because of further infringements of the law by the defendant. Among other things, the Regensburg Regional Court prohibited the defendant from providing only one order button with the designation "Buy now", with the confirmation of which the consumer is supposed to make a binding contractual declaration both with regard to the purchase contract and with regard to the membership.
The OLG Karlsruhe dismissed the defendant's appeal filed against the aforementioned prohibition as unfounded.
How should the ordering process in the online shop be designed?
The OLG Nuremberg found that the order process designed by the defendant and the contract offer contradicted § 312j para. 3 sentence 1 BGB.
The OLG Nuremberg emphasised that special business models in the online sector were not excluded and that it was also perfectly possible to conclude several contracts of different types at the same time. However, this was not possible in the manner envisaged by the defendant.
Does every contract conclusion need its own order button?
According to the OLG Nuremberg, by clicking on the order button "Buy now", the consumer only confirms the order for products subject to a charge, but not at the same time the conclusion of a membership subject to a charge.
The explanatory memorandum to Section 312j (3) sentence 1 BGB states that the consumer should not only be made aware of a basic payment obligation. Rather, according to the legislator's intention, the required indication of an obligation to pay must refer to each contract to be concluded by the act of confirmation. The required clear indication of the payment obligation on the order button is intended to protect consumers from entering into a payment obligation without being aware of this fact.
The order process designed by the defendant and the order button do not meet these requirements. The labelling of the order button with the term "Buy now" does not make it sufficiently clear to the consumer that he is at the same time concluding an additional contract subject to a charge in the form of a continuing obligation. The term "buy" does not express that a legal relationship aimed at a permanent exchange of services is to be established (cf. MüKoBGB-Wendehorst, 8th ed., Munich 2019, § 312j BGB marginal no. 29).
What does the decision mean for online traders?
The decision of the Nuremberg Higher Regional Court is an individual case. It remains to be seen whether the defendant will appeal. If the decision of the OLG Nuremberg becomes final, other courts could follow its lead.
If you are also planning to combine the conclusion of purchase contracts and the conclusion of a continuing obligation within the scope of your business model, caution is advised against the background of the decision of the OLG Nuremberg. The OLG Nuremberg did not give any advice on how the ordering processes of such business models can be designed in a legally compliant manner. The OLG Nuremberg only decided how not to do it in the present case.
At the moment, the safest way will be to actually separate the conclusion of sales contracts and the conclusion of continuing obligations. It would also be conceivable to design the order process and the order button in such a way that it is clear to the consumer that, in addition to the purchase contract, he is also concluding an additional contract subject to a charge in the form of a continuing obligation. However, the latter variant is prone to errors and should only be considered after careful legal advice.
We are happy to advise you in the entire area of IT/IP and data protection law so that your business model becomes or remains legally compliant.
Source: OLG Nuremberg, judgement of 29.05.2020, ref. no. 3 U 3878/19
Previous instances: LG Regensburg, judgment of 01.10.2019, Ref. 1 HK O 358/19
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