Exclusion of liability for defects for consumers anti-competitive

The First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for competition law, has ruled that a commercial seller acts unfairly within the meaning of Sections 3, 4 No. 11 UWG if he offers goods to consumers on an internet platform under exclusion of warranty for defects.

The defendant is registered as a commercial seller on eBay. He offered a used telephone for sale on this internet platform in November 2005. The offer provided for a disclaimer of warranty. The plaintiff purchased the telephone under her general user ID, which was not intended exclusively for traders.

The plaintiff sued the defendant for injunctive relief against selling telephone articles to consumers under exclusion of warranty. The Regional Court dismissed the action. On the plaintiff's appeal, the Court of Appeal ruled in favour of the defendant.

The Federal Supreme Court - like the Court of Appeal - assumed that the defendant's offer was also directed at consumers and not only at traders. The defendant had indeed indicated that he was only selling to traders. However, he had not made the reference unambiguously and had not taken precautions to ensure that only traders submitted offers. The defendant could not validly agree an exclusion of warranty vis-à-vis consumers under §§ 474, 475 BGB. The exclusion of warranty nevertheless provided for in his offer on eBay constitutes an infringement of competition because the defendant thereby acted contrary to a statutory provision within the meaning of § 4 no. 11 UWG. The Federal Court of Justice thus also decided the contentious issue of whether, in addition to associations, competitors can also take action against the use of inadmissible contractual clauses.

Although the infringement itself would have justified the requested prohibition on the basis of the Unfair Competition Act, the Federal Court of Justice reversed the decision of the lower court and remanded the case because the Court of Appeal had deprived the defendant of the opportunity to make further submissions through a procedural error.


Judgment of the Federal Court of Justice (BGH) of 31 March 2010 - I ZR 34/08

Lower courts:

OLG Düsseldorf Judgment of 15 January 2008 - 20 U 108/07

LG Wuppertal Judgment of 1 June 2007 - 1 O 379/06


Source: Press release of the Federal Supreme Court


Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: m.ullrich@goldberg.de