Usury-like legal transaction in an internet auction

The defendant offered a mobile phone for sale under the name "Vertu Weiss Gold" on the internet platform eBay in the context of an auction with the addition of a photo at a starting price of € 1 without setting a minimum price. As to the description, the offer stated that the condition was used. In addition, the defendant stated the following:

Hello to all lovers of Vertu

You are bidding on an almost new mobile phone (was only unpacked to try it out). But it does show a few slight signs of use (I mention this for the sake of honesty). I bought 2 at auction and decided to buy the yellow golden one. I am enclosing the instructions for use (English) for the yellow gold one, I didn't get the other one either. You also get a case, headphones and spare battery. Private sale, therefore no returns. Have fun bidding."

The plaintiff submitted a maximum bid of € 1,999 and won the bid for € 782. He refused to accept the mobile phone offered by the defendant on the grounds that it was a counterfeit. The plaintiff claimed that an original of the mobile phone offered by the defendant cost € 24,000. The action for payment of € 23,218 in damages (€ 24,000 minus the purchase price of € 782) plus interest and pre-litigation lawyer's fees was unsuccessful in the lower courts.

The plaintiff's appeal against this led to the reversal of the appeal ruling. The VIII. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for the law of sales, ruled that, contrary to the assumption of the Court of Appeal, the contract of sale concluded between the parties was not void as a so-called usury-like legal transaction pursuant to § 138 para. 1 BGB*. It is true that it is the established case law of the Federal Supreme Court that legal transactions in which there is a conspicuous disproportion between performance and consideration are void pursuant to § 138 (1) BGB if further circumstances, such as a reprehensible attitude, are added. In the case of the sale of real estate and other high-value items, such an attitude can regularly be inferred if the value of the performance is approximately twice as high as that of the consideration. However, such evidence cannot be assumed without further ado in the case of an online auction. This is because the situation of an internet auction differs fundamentally from the cases decided so far, in which only the contracting parties faced each other in the contract negotiations.

On the grounds given by the Court of Appeal, an agreement as to the quality of the mobile phone offered, namely that it is an original copy of the Vertu brand, cannot be denied. The Court of Appeal held that the starting price of € 1 chosen by the defendant for the auction spoke "above all" against the assumption of a corresponding agreement as to quality (§ 434 (1) sentence 1**). This reasoning does not hold water. The Court of Appeal fails to recognise that, in view of the special features of an internet auction, the starting price does not, in principle, contain any information about the value of the item offered. This is because the price that can be achieved in internet auctions is completely independent of the starting price, since it is formed from the maximum bids of the interested parties, so that even items with a very low starting price can achieve a high final price if several bidders are prepared to pay corresponding amounts for the item.

Finally, for these reasons, the Court of Appeal cannot be followed insofar as it denied the asserted claim for damages on the auxiliary ground that the plaintiff had remained unaware of the - assumed - defect of the unauthenticity of the mobile phone offered by the defendant as a result of gross negligence (§ 442 (1) sentence 2 BGB***) because it was contrary to experience that a mobile phone with the value claimed by the plaintiff was offered on an internet platform at a starting price of € 1.

The case was referred back to the Court of Appeal so that it can make the necessary findings, on the basis of which the Court of Appeal will have to assess, in a comprehensive assessment of all the circumstances, whether, from the point of view of a reasonable recipient, the defendant's offer concerned an original Vertu brand device.


Judgment of the BGH of 28 March 2012 - VIII ZR 244/10

Lower courts:

Saarbrücken Regional Court - Judgment of 21 August 2009 - 12 O 75/09

OLG Saarbrücken - Judgment of 26 August 2010 - 8 U 472/09 -122 Karlsruhe, 28 March 2012


Source: Press release of the BGH


Goldberg Attorneys at Law 2012

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

Specialist lawyer for information technology law