In two judgments of 17.01.2013 and 14.02.2013, the 4th Civil Senate of the Higher Regional Court of Hamm clarified the legal significance of a guarantee statement associated with the "Buy it now" function and the indication "Private sale" in eBay offers.
In the first case, the defendant, which is based in the Erzgebirge region of Saxony and sells household appliances on the internet, offered floor hoovers with an illustrated offer on the internet platform e-Bay at a purchase price of € 318.50 with the option "buy it now". The third picture of the offer showed, enlarged by touching the cursor, the number 5, below which was the indication "5 years guarantee".
According to the decision of the 4th Civil Senate of 14.02.2013, this offer design constitutes inadmissible advertising because the guarantee statement does not contain the information required by law to protect consumers. According to § 477 of the German Civil Code (BGB), it must refer to the consumer's statutory rights and also to the fact that these are not limited by the guarantee. The guarantee statement must also contain the content of the guarantee and all essential information required for the assertion of the guarantee, in particular the duration and the territorial scope of the guarantee protection as well as the name and address of the guarantor. The senate further pointed out that the statement "5-year guarantee" was to be evaluated as a binding guarantee declaration and not only as a legally non-binding announcement of a later acceptance of the guarantee. By choosing the "Buy it now" offer format, the defendant had submitted a binding offer for sale on eBay, with the conclusion of the purchase contract resulting from a bidder registered on eBay clicking the "Buy it now" button and confirming the transaction. Against this background, the consumers addressed saw the reference to a guarantee period of five years as an (advantageous) component of the defendant's offer. From the prospective buyer's point of view, the defendant already offered the device with a five-year guarantee and emphasised this particularly in connection with the product description. This did not merely hold out the prospect that a warranty contract could be concluded at a later date.
Final judgement of the 4th Civil Senate of the Higher Regional Court of Hamm 14.02.2013 (4U 182/12)
In the second case, the defendant from Sesslach offered a total of 250 new rechargeable batteries in various packagings and small quantities on the Internet platform eBay and indicated that larger quantities were also possible. The defendant's internet offer also contained the following note: "Now the usual: Private sale: no guarantee or warranty, 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 required an independent economic activity of a certain duration, the purpose of which was to distribute goods or services in return for payment. The applicant argues that such an activity is obvious if a provider repeatedly trades in similar goods or services on internet platforms. Such an activity was obvious if a provider repeatedly traded with similar, in particular also with new, objects on internet platforms. Taking these conditions into account, the defendant had acted commercially. The 60 eBay reviews he had received within one year were already indicative of this, as were the nature and scope of his activity in selling the 250 batteries. He had offered new batteries of the same type as new. The offering and sale of such a large number of batteries had taken place over a long period of time. When the small quantities were offered, it was always pointed out that larger quantities were also available in addition to the quantity offered at the price stated. This gave the impression of a permanent commercial activity. This was not contradicted by the fact that the defendant had received these 250 batteries as a gift from his employer and that they could therefore have been private sales from his private assets. In this case, the defendant's business activity had begun when he offered the batteries for sale in small quantities on his eBay account in order to be able to sell them better and with greater profit.
Final judgement of the 4th Civil Senate of the Higher Regional Court of Hamm of 17.01.2013 (4 U 147/12)
Source: Press release of the OLG Hamm
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail:info@goldberg.de
