The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, has ruled that a commercial seller acts unfairly within the meaning of Sections 3, 4 No. 11 of the Act Against Unfair Competition (UWG) if they offer goods to consumers on an internet platform with an exclusion of warranty for defects.
The defendant is registered as a commercial seller on eBay. In november 2005, he offered a used telephone for sale on this internet platform. The offer included an exclusion of warranty. The plaintiff purchased the telephone using her general user ID, which was not exclusively intended for commercial traders.
The plaintiff sought an injunction against the defendant to prevent the sale of telephone items to consumers with an exclusion of warranty. The Regional Court dismissed the claim. Following the plaintiff's appeal, the Higher Regional Court ruled against the defendant as requested.
The Federal Court of Justice – like the Higher Regional Court – proceeded on the assumption that the defendant's offer was directed at consumers as well, and not solely at commercial traders. Although the defendant had indicated that sales were exclusively to commercial traders, this notice was not unambiguous, and no measures were taken to ensure that only commercial traders submitted bids. The defendant could not effectively agree to an exclusion of warranty with consumers under Sections 474, 475 of the German Civil Code (BGB). The exclusion of warranty, despite being included in his eBay offer, constitutes a violation of competition law because the defendant thereby contravened a statutory provision within the meaning of Section 4 No. 11 of the Act Against Unfair Competition (UWG). With this ruling, the Federal Court of Justice also resolved the contentious question of whether competitors, in addition to associations, can take action against the use of inadmissible contractual clauses.
Although the violation itself would have justified the requested injunction under the Act Against Unfair Competition, the Federal Court of Justice overturned the lower court's decision and remanded the case because the Higher Regional Court, through a procedural error, deprived the defendant of the opportunity to present further arguments.
Judgment of the Federal Court of Justice (BGH) of March 31, 2010 – I ZR 34/08
Lower Courts:
Higher Regional Court of Düsseldorf Judgment of January 15, 2008 – 20 U 108/07
Regional Court of Wuppertal Judgment of June 1, 2007 – 1 O 379/06
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)
E-mail: m.ullrich@goldberg.de
