An online shop operator may offer payment methods that incur additional costs when used. However, the admissibility of such payment methods subject to costs is tied to certain conditions pursuant to Section 312a (4) of the German Civil Code (BGB).
According to Section 312a (4) of the German Civil Code (BGB), an online shop operator must offer its customers who are consumers a common and reasonable payment option free of charge and the agreed surcharge may not exceed the costs incurred by the online shop operator through the use of this payment method. Only then may the online shop operator offer a payment method that incurs additional costs when used.
It is disputed whether the payment method "Sofortüberweisung" is such a "common and reasonable free payment option".
The Regional Court of Frankfurt a.M. had denied this.
The Higher Regional Court of Frankfurt a.M. has now affirmed this with the following arguments:
"....Pursuant to Section 312a (4) No. 1 of the German Civil Code (BGB), an agreement obliging a consumer to pay a fee for using a specific means of payment for the performance of his contractual obligations is invalid if no common and reasonable free payment option exists for the consumer. The background of this provision is the essential basic idea of dispositive law, according to which every party subject to the law has to fulfil its legal obligations without being able to demand a separate payment for it, in particular if it is a matter of merely accepting the performance owed by the contractual partner (BGH, judgment of 20.05.2010 Xa ZR 68/09 marginal no. 42). ......
The District Court found that there were no doubts as to the acceptability of the means of payment (note: instant transfer) ......... ......
The payment option by using the payment initiation service (note: Sofortüberweisung) ........ also constitutes reasonable within the meaning of § 312 a para. 4 no. 1 BGB. ......
Finally, as far as the plaintiff bases the unreasonableness on the fact that the customer would have to enter into a contractual relationship with a third party by using the input mask of the intervening party, which is unreasonable for him, this is also not convincing. ......
Finally, insofar as the plaintiff mentions aspects of data protection law, these are also not able to justify the result of an unreasonable payment method as a result of the involvement of the intervening party within the meaning of § 312 a para. 4 no. 1 BGB. ...... "
Source: Higher Regional Court Frankfurt a.M., Judgment dated August 24, 2016, file number 11 U 123/15
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
