Liability of the owner of an eBay member account for statements by third parties

The defendant maintained a password-protected member account at the Internet auction house eBay. On 3 March 2008, a complete catering facility was offered for sale using this account with an opening bid of € 1, whereupon the plaintiff placed a maximum bid of € 1,000. One day later, the auction was ended prematurely by withdrawing the bid. The plaintiff was the highest bidder at that time. In a letter dated 25 May 2008, he requested the defendant to transfer ownership of the catering equipment, the value of which he estimated at € 33,820, concurrently with payment of € 1,000. After the unsuccessful expiry of the deadline set for this purpose, he demanded damages for non-performance in the amount of € 32,820.

The parties are in dispute as to whether the offer for a catering facility was placed on the eBay internet platform by the defendant or, without her involvement and knowledge, by her husband. The General Terms and Conditions of eBay state in § 2 number 9:

"Members are generally liable for all activities undertaken using their membership account." ...

The Regional Court dismissed the action. The Higher Regional Court dismissed the plaintiff's appeal.

The plaintiff's appeal against this was unsuccessful. The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales, among other things, ruled that the rules of agency law also apply to internet transactions. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for the law of sales, ruled that the rules of the law of representation are also applicable to internet transactions if the use of another person's name gives the business partner the impression that a transaction is to be concluded with the person bearing the name. Declarations made under the name of another person are therefore only binding on the holder of the name if they are made in the exercise of an existing power of representation or if they have been subsequently approved by the holder of the name or if the principles of acquiescence or prima facie power of attorney apply. On the other hand, the mere careless custody of the contact details of an eBay member account does not mean that the owner of the account has to accept responsibility for statements made by a third party using this account without authorisation. An attribution of third party declarations to the account holder also does not result from § 2 number 9 of eBay's General Terms and Conditions. Since these General Terms and Conditions are only agreed between eBay and the owner of the member account, they do not apply directly between the seller and the bidder. On this basis, no contract of sale for the catering equipment was concluded between the parties in the present case.

Judgment of the BGH of 11 May 2011 - VIII ZR 289/09

Lower courts:

Dortmund Regional Court - Judgment of 23 December 2008 - 3 O 508/08

OLG Hamm - Judgment of 20 July 2009 - I-2 U 50/09

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law 2011

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

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de

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