In a decision, the Federal Supreme Court dealt with the question of whether a clause in the auction conditions of an auction house which largely excludes liability of the auction house for material defects is effective.
The defendant is a publicly appointed and sworn auctioneer. At an art auction organised by him, he offered a Buddha sculpture that had been delivered to him. It was described in the auction catalogue as follows: "Sitting Buddha, Dhyan Asana, [...] China, Sui Dynasty, 581-681[...] Museal! 3.800,00 €".
The defendant's auction conditions contained, inter alia, the following provisions:
"[...]
7 Warranty, liability
a) The buyer may not raise any objections or claims against the auction house due to material defects. [...]
b) The Auction House's liability for damages for pecuniary loss, irrespective of the legal grounds, shall be excluded unless the Auction House is guilty of intent or gross negligence...".
The sculpture was sold to the plaintiff for 20,295 €. Due to doubts about the authenticity of the sculpture, he later had it examined by a private expert with the result that the findings contradicted the authenticity of the object. After the plaintiff had unsuccessfully made a claim against the seller for repayment of the purchase price, he declared to the defendant that he was withdrawing from the purchase contract. He claimed reimbursement of the purchase price paid and the expert's fees incurred, plus interest, concurrently with the return of the sculpture.
The Regional Court dismissed the action. On the plaintiff's appeal, the Higher Regional Court essentially upheld the action.
The defendant's appeal was successful (only) because of a procedural error by the Higher Regional Court in its assumption that the sculpture was unauthentic. The VIII. Civil Senate of the Federal Court of Justice ruled that the exclusion of warranty contained in clause 7 of the auction conditions was invalid.
A sculpture offered at an art auction, which has been described in the auction catalogue as above, is defective if it is not an original from the specified stylistic period but a modern forgery. A right of withdrawal resulting from the inauthenticity of the sculpture to be assumed here is not excluded by item 7 of the auction conditions. The exclusion of warranty regulated therein violates § 309 no. 7 letter a BGB*, according to which an exclusion or limitation of liability in general terms and conditions for damages resulting from injury to life, body or health which are based on a negligent breach of duty by the user is invalid. This is because the exclusion of warranty, according to its wording, also impermissibly includes such claims of the buyer against the auctioneer arising from defects of the auctioned items in its scope.
The Federal Supreme Court referred the legal dispute back to the Higher Regional Court for further clarification of the authenticity of the sculpture.
Judgment of the BGH of 9 October 2013 - VIII ZR 224/12
Lower courts:
LG Munich - Judgment of 6 April 2011 - 23 O 24119/10
OLG Munich - Judgment of 26 June 2012 - 5 U 2038/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
