The Eighth Civil Senate of the Federal Court of Justice, responsible, among other areas, for sales law, has ruled that a consumer's right of withdrawal in a distance selling transaction remains valid even if the purchase agreement concerns a radar detector, which is otherwise void due to immorality.
Following a telemarketing call on May 1, 2007, the plaintiff ordered by fax the next day a car rearview mirror equipped with a radar warning function, coded, inter alia, for Germany, at a gross price of €1,129.31 plus shipping costs. The order form completed by the plaintiff included the following pre-formulated notice:
“I have been informed that these devices are prohibited and that courts additionally consider the purchase of radar detectors to be immoral.”
The device was delivered cash on delivery on May 9, 2007. On May 19, 2007, the plaintiff returned the device to the defendant and requested a refund of the purchase price. The defendant, however, refused to accept the device and to reimburse the purchase price.
Through her lawsuit, the plaintiff seeks, inter alia, a judgment compelling the defendant to refund the purchase price plus €8.70 for return shipping costs, amounting to a total of €1,138.01.
The Local Court dismissed the claim. The appellate court, however, granted the claim. The defendant's appeal, which was permitted by the appellate court, was ultimately unsuccessful.
The Federal Court of Justice has ruled that the plaintiff, as a consumer, is entitled to the unwinding of the purchase contract due to the exercised right of withdrawal. She can demand the repayment of the purchase price (§ 346 BGB) and reimbursement of the costs for returning the device (§ 357 para. 2 sentence 2 BGB).
While, according to the Senate's jurisprudence, a purchase contract for a radar detector is immoral and thus void under § 138 para. 1 BGB if the purchase, based on the contractual purpose recognizable to both parties, is intended for use within the scope of the German Road Traffic Regulations (Senate judgment of February 23, 2005 – VIII ZR 129/04, NJW 2005, 1490 f.), the plaintiff's right to withdraw from the distance selling contract remains unaffected. A right of withdrawal under §§ 312d, 355 BGB in a distance selling contract exists irrespective of the validity of the consumer's declaration of intent or the contract itself. The rationale behind the right of withdrawal in distance selling contracts is to grant consumers an easily exercisable right to unilaterally withdraw from the contract, free from any substantive preconditions, in addition to the general rights available to any contracting party.
The Senate has rejected the argument that a consumer cannot invoke their right of withdrawal if the contract is void, particularly when the consumer is at least partially responsible for the circumstances leading to the contract's nullity under §§ 134, 138 BGB. An exclusion of the right of withdrawal due to an abusive exercise of rights can only be considered in instances where the entrepreneur demonstrates a particular need for protection. This condition is not met, however, when – as in the case decided today – both parties are culpable for a violation of public morals.
The case now decided thus distinguishes itself from the one underlying the Federal Court of Justice's judgment of February 23, 2005 – VIII ZR 129/04, NJW 2005, 1490. In that prior case, the buyer, who had not asserted a right of withdrawal under § 312d BGB, was unable to demand the repayment of the purchase price for a radar detector because the claim for unjust enrichment (§ 812 BGB) under consideration there was precluded by the bar on recovery stipulated in § 817 S. 2 BGB. Pursuant to this provision, the recovery of a performance rendered in fulfillment of a contract void due to immorality is excluded if both parties are culpable for a breach of public morals. However, this bar on recovery does not apply to the consumer's claim for repayment of the purchase price under § 346 BGB when exercising a right of withdrawal in a distance selling transaction.
Judgment of the Federal Court of Justice of november 25, 2009 – VIII ZR 318/08
Lower Courts:
Local Court of Leer – Judgment of April 28, 2008 – 071 C 130/08 (I)
Regional Court of Aurich – Judgment of november 21, 2008 – 1 S 140/08 (138)
Excerpts from statutory provisions:
Section 312d German Civil Code
(1) In a distance contract, the consumer is entitled to a right of withdrawal pursuant to Section 355. Instead of the right of withdrawal, the consumer may be granted a right of return pursuant to Section 356 in contracts for the supply of goods. …
Section 355 German Civil Code
(1) If a consumer is granted a right of withdrawal by law under this provision, he is no longer bound by his declaration of intent to conclude the contract if he has withdrawn it within the stipulated period. …
§ 817 BGB
If the purpose of a performance was such that the recipient, by accepting it, violated a statutory prohibition or public morals, then the recipient is obliged to return it. Restitution is excluded if the performing party is likewise responsible for such a violation, unless the performance consisted of entering into an obligation; what was performed to fulfill such an obligation cannot be reclaimed.
Source: Press release of the Federal Court of Justice
Goldberg Rechtsanwälte
Michael Ullrich, LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law (IT Law)
Email: info@goldberg.de
