On 14 April 2011, the First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for competition law, ruled that the more detailed information that must be contained in the guarantee declaration in the case of a sale of consumer goods does not necessarily have to be listed in the advertising with the guarantee.
The parties trade in ink and toner cartridges for computer printers, which they sell via the internet by mail order. The defendant offered printer cartridges on its website with the promise of a "3-year guarantee". The plaintiff objected as anti-competitive that the defendant did not state in the advertisement what the conditions of the occurrence of the guarantee were and under which circumstances the consumer could make use of the guarantee. The Regional Court dismissed the action. The Court of Appeal ordered the defendant to refrain from advertising guarantees without properly informing the consumer of his legal rights.
The Federal Supreme Court (BGH) overturned the court of appeal's decision and restored the judgement of the Regional Court. Pursuant to section 477(1) sentence 2 of the German Civil Code (BGB), a guarantee declaration must contain a reference to the consumer's statutory rights and to the fact that these rights are not limited by the guarantee. Furthermore, the declaration must state the content of the guarantee and all essential information required for its assertion. A guarantee declaration only covers a declaration of intent that leads to the conclusion of a purchase contract or an independent guarantee contract, but not advertising that merely invites the consumer to order goods and in this context announces a guarantee without already promising it in a legally binding manner. The provision of German law, which is clear in this respect, admittedly only transposes the European Directive 1999/44/EC on the sale of consumer goods, which in this context - ambiguously in its wording - speaks of "the guarantee" having to contain the information in question. The Federal Court of Justice, however, has regarded it as unquestionable that this also refers only to the guarantee statement and not to the advertising of the guarantee.
Judgment of the BGH of 14 April 2011 - I ZR 133/09
Lower courts:
Regional Court of Bielefeld of 20 March 2009 - 15 O 233/08
Higher Regional Court of Hamm of 13 August 2009 - 4 U 71/09
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Lawyer Michael Ullrich LL.M. (Information Law)
Specialist lawyer for information law (IT law)
