Facts and course of proceedings:
The defendant is an online retailer that sells, among other things, mattresses. mattresses. The plaintiff ordered a mattress for private purposes via the defendant's website. the defendant's website for a purchase price of € 1,094.52. was delivered to him with a sealed protective film.
In the defendant's invoice of 26 November 2014, reference was made to the the general terms and conditions printed on the invoice, which also contained which also contained a "Cancellation policy for consumers". There it is that the right of revocation for contracts for the delivery of sealed goods sealed goods which are not suitable for return for reasons of health protection or hygiene. for reasons of health protection or hygiene, expires prematurely if the seal has been removed removed after delivery.
Upon receipt of the mattress, the plaintiff removed the protective foil.
The plaintiff asked the defendant by email of 9 December 2014 2014, the plaintiff asked the defendant to arrange an appointment for the return of the wanted to return the mattress. As the defendant did not arrange for the requested return transport, the plaintiff transport, the plaintiff ordered the transport himself at a cost of € 95.59. order.
The claim for reimbursement of the purchase price and the transport costs, a total of € 1,190.11, plus interest, as well as indemnification against the legal costs incurred before the court was successful in the lower courts. had been successful. The Court of Appeal found that a mattress is not a hygiene article. mattress was not a hygiene article within the meaning of § 312g para. 2 no. 3 BGB, so that the revocation BGB, so that the revocation was not excluded even after the plaintiff had removed the protective foil. plaintiff had not been excluded. In the appeal allowed by the Court of Appeal, the defendant continues to pursue its claim for dismissal. further.
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 referred a question to the Court of Justice of the European Union ("the Court of Justice"), inter alia, the question of whether Article 16(e) of the Article 267(3) TFEU, whether Article 16(e) of the Consumer Directive is to be interpreted as meaning that the goods referred to therein, which are goods which, for reasons of health protection or hygiene, are unsuitable for return for reasons of health protection or hygiene, also include goods (such as mattresses) which, although come into direct contact with the human body when used for their intended purpose, but which contact with the human body when used as intended, but which can be made marketable again (Senate decision of 15 November 2017 - viii zr 194/16). VIII ZR 194/16, NJW 2018, 453). At the same time, the Senate has stayed the proceedings pursuant to section 148 ZPO by analogy until the decision of the Court.
The decision of the Federal Supreme Court:
The VIII. Civil Senate of the Federal Court of Justice ruled that a contract of sale concluded by a consumer with an online trader for a a consumer concludes with an online trader for a mattress that is delivered to him sealed with a protective film, is not a contract for the supply of sealed goods that are goods which, for reasons of health or hygiene, are unsuitable for return, if the goods are not for return if the seal is removed after delivery (§ 312g para. 2). (§ 312g para. 2 no. 3 BGB). The consumer therefore also has the right to right to revoke his declaration of intent to conclude the contract pursuant to § 312g para. 1 BGB even if he has removed the protective film.
The result and the reasoning of this case-law the standards set by the Court of Justice in response to the Senate's of 15 November 2017 in the judgment of 27 March 2019 (C-681/17). gave. This is because the German exemption provision of § 312g (2) no. 3 BGB is based on the identical provision under European law of Art. 16 lit. e of the Consumer Rights Directive, which the German legislator intended to transpose German legislature intended to transpose fully into German law.
An exception to the right of withdrawal granted to consumers in principle consumers in distance contracts is to be denied, especially in view of its purpose. and purpose of the right of withdrawal. The right of withdrawal is intended to protect the consumer the consumer in the special situation of distance selling, in which he has no the product before concluding the contract and to take note of its characteristics. its characteristics before concluding the contract. This disadvantage is to be right of withdrawal, which grants the consumer a reasonable period of period during which he has the opportunity to examine and try out the purchased goods. and try out the purchased goods.
With regard to this, the exemption only applies if, after the if, after the sealing of the packaging has been removed, the product the goods contained therein are definitively unfit for sale for reasons of health or hygiene no longer marketable, because the trader has taken measures to restore it in compliance with the health protection or hygiene of the goods, or could do so only with disproportionate or could do so only with disproportionate difficulty.
Applying this standard, a mattress whose protective film has been the consumer has removed does not fall within the scope of the exception. With regard to the right of withdrawal, a mattress can be equated with an item of clothing, which also with a piece of clothing that can also come into direct contact with the human body. contact with the human body. It is to be assumed that traders are able to sell both goods are in a position to make them suitable for return by means of treatment such as treatment such as cleaning or disinfection for reuse by a third party and thus for for reuse by a third party and thus for placing on the market again.
Since the Court of Appeal interpreted the announcement of the return of the mattress and the request to pay the transport costs as a declaration of withdrawal without any legal error, the parties were no longer bound by their declarations of intent aimed at concluding the contract pursuant to § 355 (1) of the German Civil Code with the consequence that the defendant online trader had to reimburse the purchase price and the transport costs incurred to the plaintiff. The defendant's appeal was therefore unsuccessful.
Judgment of the Federal Supreme Court of 3 July 2019 - VIII ZR 194/16
Lower courts:
Mainz Local Court - Judgment of 26 November 2015- 86 C 234/15
Mainz Regional Court - Judgment of 10 August 2016 - 3 S 191/15
