Do not prematurely cancel an eBay auction without a justified reason

In a decision, the Federal Supreme Court dealt with the question under which circumstances a seller can prematurely end an eBay auction that has been running for more than 12 hours and sell the item offered elsewhere without becoming liable to pay damages to the highest bidder up to that point.

On 17 May 2012, the defendant offered a power generator on the internet platform eBay for a period of ten days at a starting price of € 1. On 19 May 2012, he broke off the auction prematurely. At that time, the plaintiff was the highest bidder at the starting price of € 1 and - after the defendant had sold the generator elsewhere - now sought damages in the amount of the value of the generator (€ 8,500).

The defendant argues that he was entitled to cancel the auction without further ado on the basis of eBay's general terms and conditions, as it would have continued for more than 12 hours.

The auction took place on the basis of eBay's General Terms and Conditions, which were applicable at the time. There it said in part:

"§ 9 No. 11: Vendors who post a binding offer on the eBay website may only cancel bids and withdraw the offer if they are legally entitled to do so. Further information. [...]

§ 10 No. 1 Sentence 5: At the end of the auction or in the event of premature termination of the offer by the offerer, a contract for the purchase of the item shall be concluded between the offerer and the highest bidder, unless the offerer was legally entitled to withdraw the offer and cancel the bids at hand."

The link "Further information" in § 9 No. 11 led, among other things, to the following references:

"How do I end my offer early?

When you list an item on the eBay website, you are generally making a binding offer to enter into a contract for that item and are bound by that offer for the duration of the offer. However, you may have to end an offer early, for example, if you discover that you made a mistake in listing the item or the item for sale is damaged or lost during the listing period through no fault of your own.

Before ending an offer applies:

- Make sure your reason for ending the offer is valid. [...]"

It went on to say, among other things:

"Offer still runs longer than 12 hours

If the offer is still running for 12 hours or longer, you can end it early without any restrictions. If there are bids on the item at the time the offer ends, you will be asked if you want to cancel the bids or sell the item to the highest bidder. [...]"

The Regional Court dismissed the action. On the plaintiff's appeal, the Higher Regional Court ordered the defendant to pay damages in the amount of € 8,500. The appeal allowed by the court of appeal was unsuccessful.

The VIII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the law of sales. Civil Senate of the Federal Court of Justice ruled that the plaintiff was entitled to damages in lieu of performance pursuant to § 280 (1), (3), § 283 sentence 1 BGB in the amount of € 8,500. Between the plaintiff as the highest bidder and the defendant, a contract of sale for the power generator came into being at a price of € 1.

From the point of view of the bidder participating in the auction, the offer for sale was to be interpreted to the effect that it was only subject to a withdrawal of the offer justified pursuant to § 9 no. 11, § 10 no. 1 sentence 5 of the eBay GTC. As the Court of Appeal correctly found, none of the reasons for withdrawing the offer stated therein existed. Therefore, contrary to the opinion of the appeal, the offer was not non-binding. For it cannot be inferred from the "Further Information" linked to § 9 no. 11 of the eBay GTC that an offer may be withdrawn without a justifying reason . This also applies if the auction - as in this case - is still running for 12 hours or longer. The "Further Information" is to be understood merely as a supplement to § 9 No. 11 with regard to the practical implementation of the withdrawal of the offer. According to their entire content, however, they are not intended to further restrict the binding of the offer for the duration of the auction - which is the basis of the business model of an eBay auction - than is already the case in § 9 no. 11 and § 10 no. 1 sentence 5 of the eBay GTC.

 

Judgment of the Federal Supreme Court of 10 December 2014 - VIII ZR 90/14

Lower courts:

Nuremberg-Fürth Regional Court - Judgment of 17 January 2013 - 7 O 6876/12

Nuremberg Higher Regional Court - Judgment of 26 February 2014 - 12 U 336/13

Source: Press release of the BGH

Goldberg Attorneys at Law 2015

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

Specialist lawyer for information technology law

E-mail: info@goldberg.de

 

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