The 4th Civil Senate of the Higher Regional Court of Hamm, in two judgments dated January 17, 2013, and February 14, 2013, clarified the legal significance of a warranty declaration associated with the “Buy It Now” function and the designation “Private Sale” in eBay offers.
In the first case, the defendant, based in the Saxon Ore Mountains and selling household appliances online, offered vacuum cleaners on the eBay internet platform for a purchase price of €318.50 with the “Buy It Now” option, accompanied by an illustrated listing. The third image in the listing, enlarged by a cursor hover, displayed the number 5, with the statement “5 Years Warranty” below it.
According to the decision of the 4th Civil Senate of February 14, 2013, this offer design constitutes inadmissible advertising because the warranty declaration does not contain the information legally required for consumer protection. Pursuant to Section 477 of the German Civil Code (BGB), it must refer to the consumer's statutory rights and also indicate that these are not restricted by the warranty. Furthermore, the warranty declaration must contain the content of the warranty and all essential information required for asserting the warranty, particularly the duration and territorial scope of the warranty protection, as well as the name and address of the guarantor. The Senate further pointed out that the statement “5 Years Warranty” should be regarded as a binding warranty declaration and not merely as a non-binding announcement of a later warranty undertaking. By choosing the “Buy It Now” offer format, the defendant had made a binding sales offer on eBay, where the purchase contract is concluded when an eBay-registered bidder clicks the “Buy It Now” button and confirms the transaction. Against this background, the addressed consumers would perceive the reference to a five-year warranty period as an advantageous component of the defendant's offer. From the perspective of potential buyers, the defendant was already offering the device with a five-year warranty and particularly highlighted this in connection with the product description. This did not merely suggest that a warranty contract could be concluded at a later date.
Legally binding judgment of the 4th Civil Senate of the Higher Regional Court of Hamm, February 14, 2013 (4U 182/12)
In the second case, the defendant from Sesslach offered a total of 250 new rechargeable batteries in various packages and small quantities on the eBay internet platform, indicating that larger quantities were also available. The defendant's online offer also included the note: “Now for the usual: Private sale: no warranty or guarantee, no right of return.”
The 4th Civil Senate of the Higher Regional Court of Hamm considered this Internet offer by the defendant to be a commercial offer that constituted unfair advertising because it did not inform bidders about the identity of the seller and did not point out the existence of the right of withdrawal. The defendant had acted in the course of business and not merely as a private individual. In the interest of effective consumer protection, the requirements for acting in the course of business should not be too high.
requirements should not be made.
It merely requires an independent economic activity intended to be of a certain duration, aimed at distributing goods or services for remuneration. Such an activity is likely when a provider repeatedly deals with similar, especially new, items on internet platforms. Considering these prerequisites, the defendant had engaged in commercial activity. The 60 eBay reviews for him within one year already indicated this, as did the nature and extent of his activity in selling the 250 rechargeable batteries. He had offered new rechargeable batteries of the same type as new. The offering and sale of such a large number of rechargeable batteries had extended over a longer period. In the offers for small quantities, it was always indicated that larger quantities were also available in addition to the offered amount at the stated price. This created the impression of a continuous commercial activity. It was not contradicted by the fact that the defendant had received these 250 rechargeable batteries as a gift from his employer and that these could therefore have been private sales from private assets. In this case, the defendant's commercial activity began when he offered the rechargeable batteries in small quantities on his eBay account for sale, in order to sell them better and with greater profit.
Legally binding judgment of the 4th Civil Senate of the Higher Regional Court of Hamm, January 17, 2013 (4 U 147/12)
Source: Press release of the Higher Regional Court of Hamm
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email :info@goldberg.de
