The VIII Civil Senate of the Federal Court of Justice, which is also responsible for sales law, ruled that a consumer's right of withdrawal exists in a distance selling transaction. Civil Senate of the Federal Court of Justice has ruled that a consumer has a right of revocation in a distance selling transaction even if the subject matter of the contract is a purchase agreement for a radar detector which is void due to immorality.
After an advertising conversation by telephone on 1 May 2007, the plaintiff ordered by fax on the following day an interior car mirror with a radar warning function coded inter alia for Germany at a price of € 1,129.31 (gross) plus shipping costs. The order form filled out by the plaintiff contained, among other things, the pre-formulated note:
"I was advised that the devices are banned and that the courts also consider the purchase of radar detectors to be immoral."
The appliance was delivered cash on delivery on 9 May 2007. The plaintiff returned the appliance to the defendant on 19 May 2007 and asked for a refund of the purchase price. The defendant refused to accept the device and to refund the purchase price.
With her action, the plaintiff seeks, inter alia, an order that the defendant repay the purchase price plus € 8.70 in return shipping costs, a total of € 1,138.01.
The district court dismissed the action. The court of appeal upheld the action. The defendant's appeal, which was allowed by the court of appeal, was unsuccessful.
The Federal Supreme Court ruled that the plaintiff, as a consumer, was entitled to rescission of the purchase contract due to the exercised revocation. She can demand repayment of the purchase price (§ 346 BGB) and reimbursement of the costs for returning the device (§ 357 para. 2 sentence 2 BGB).
Admittedly, according to the case law of the Senate, the purchase contract for the acquisition of a radar detector is immoral and thus void pursuant to § 138 para. 1 BGB if, according to the purpose of the contract recognisable to both parties, the purchase is directed towards the use of the radar detector within the area of application of the German Road Traffic Act (Senate judgement of 23 February 2005 - VIII ZR 129/04, NJW 2005, 1490 f.). However, this does not affect the plaintiff's right to withdraw from the distance contract. A right of withdrawal pursuant to §§ 312d, 355 BGB in the case of a distance contract exists irrespective of whether the consumer's declaration of intent or the contract is valid. The purpose of the right of withdrawal in distance contracts is to provide the consumer with a right to unilaterally withdraw from the contract which is not subject to any material conditions and which is easy to exercise and which exists alongside the general rights to which everyone who concludes a contract is entitled.
The Senate has opposed the view according to which the consumer cannot invoke his right of withdrawal in the case of a nullity of the contract if he himself is at least partly responsible for the circumstance giving rise to the nullity of the contract according to §§ 134, 138 BGB. An exclusion of the right of withdrawal due to inadmissible exercise of rights can only be considered if the trader is in particular need of protection. However, this is not the case if - as in the case decided today - both parties are guilty of a violation of morality.
The case now decided thus differs from the case underlying the judgement of the Federal Court of Justice of 23 February 2005 - VIII ZR 129/04, NJW 2005, 1490. The buyer there, who had not asserted a right of revocation pursuant to § 312d BGB, could not demand repayment of the purchase price for a radar detector because the claim for restitution of unjust enrichment (§ 812 BGB) to be assessed there failed due to the conditional bar of § 817 sentence 2 BGB. According to this provision, the recovery of a service rendered to fulfil a contract that is void due to immorality is excluded if both parties are guilty of a breach of morality. This prohibition does not apply to the consumer's claim for repayment of the purchase price under section 346 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) in the case of revocation of a distance contract.
Judgment of the Federal Supreme Court of 25 November 2009 - VIII ZR 318/08
Lower courts:
AG Leer - Judgment of 28 April 2008 - 071 C 130/08 (I)
Aurich Regional Court - Judgment of 21 November 2008 - 1 S 140/08 (138)
Legal regulations reproduced in extracts:
§ 312 d BGB
(1) In the case of a distance contract, the consumer shall have a right of withdrawal under section 355. Instead of the right of withdrawal, the consumer may be granted a right of return under section 356 in the case of contracts for the supply of goods. ...
§ 355 BGB
(1) If a consumer is granted a right of withdrawal by law in accordance with this provision, he shall no longer be bound by his declaration of intent to conclude the contract if he has revoked it in due time. ...
§ 817 BGB
If the purpose of a benefit was determined in such a way that the recipient violated a legal prohibition or morality by accepting it, the recipient is obliged to return it. Recovery shall be excluded if the person rendering the service is also guilty of such a violation, unless the service consisted in the incurrence of a liability; what was rendered to fulfil such a liability may not be recovered.
Source: Press release of the BGH
Goldberg Attorneys at Law
Michael Ullrich, LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
