The parties, mail order companies, each offer jewellery, inter alia, on the internet platform eBay. A private customer commissioned by the applicant placed the highest bid as a test buyer for a ring offered by the applicant on the eBay platform on 31.01.2011 at 17:42 hrs. The auction ended on 2 February 2011 at 7:20 pm. After the auction ended, the respondent sent the mystery shopper a "cancellation and return policy" by email, which provided for a cancellation period of 14 days. The applicant considered this to be an infringement of competition and - without success - asserted claims for injunctive relief.
The reduction of the withdrawal period from one month to 14 days in the case of a consumer contract concluded at a distance requires, pursuant to Section 355 (2) of the German Civil Code (BGB), that the information on the right of withdrawal is sent in text form immediately - i.e. without culpable hesitation - after the conclusion of the contract.
The cancellation notice sent immediately after the end of the auction had been sent "immediately after the conclusion of the contract", even if the contract had already been concluded more than 49 hours earlier with the submission of the highest bid and thus more than the period of one day after the conclusion of the contract which is generally provided for by the legislator had actually elapsed before the notice was sent.
Earlier action was factually impossible and also unreasonable for the entrepreneur. Only after the successful conclusion of the action would the bidder be informed of the identity of his contractual partner. In addition, it was conceivable that the first highest bid would be outbid several times, so that the trader could be allowed to wait until the end of the campaign to inform the final buyer of his right of withdrawal. The consumer was also not kept in the dark about his right of withdrawal for longer than was unavoidable. Until the end of the auction, the consumer would also have to expect that the contract initially concluded with him would not continue at all because another bidder would submit a new highest bid.
Judgment of the 4th Civil Senate of the Higher Regional Court of Hamm of 10.01.2012 (I -4 U 145/11)
Source: Press release of the President of the Higher Regional Court of Hamm of 03.02.2012
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de
