The Federal Court of Justice (Bundesgerichtshof, BGH) has made a decision on a consumer's obligation to pay compensation for lost value when revoking a distance selling contract.
In August 2008, the parties concluded a contract of sale by e-mail for a waterbed at a price of € 1,265. The offer of the defendant, who offers the waterbeds for sale via the internet, had been sent to the plaintiff by e-mail as an attached PDF file. The text of the e-mail contains a cancellation policy. The further text of the e-mail states:
"With regard to the aforementioned revocation instruction, we additionally point out that by filling the mattress of the waterbed, a deterioration regularly occurs, as the bed is no longer to be sold as new."
The waterbed was delivered to the buyer against cash payment. The buyer set up the waterbed and filled the mattress with water. He then exercised his right of withdrawal. After collecting the waterbed, he asked the seller for a refund of the purchase price. The seller only refunded an amount of € 258 and claimed that the bed was no longer saleable; only the heater with a value of € 258 was recyclable.
The district court granted the claim for repayment of the remaining purchase price of € 1,007. The district court dismissed the seller's appeal.
The seller's appeal against this decision was unsuccessful. The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales. Civil Senate of the Federal Court of Justice ruled that the buyer can demand the full purchase price back despite the loss in value that may have occurred, since he only inspected the goods.
An objection of the consumer declared in due time in the case of a distance contract has the consequence that the services received have to be returned by the contracting parties. Insofar as the received object has deteriorated or perished, the debtor must pay compensation for the value instead of returning the object. Pursuant to section 357, subsection 3, sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), the consumer must also pay compensation for the deterioration in value caused by the intended use of the goods if he was informed of this legal consequence and a possibility to avoid it in writing at the latest at the time of the conclusion of the contract. However, according to Section 357 (3) sentence 2 BGB [old*; now sentence 3], the obligation to pay compensation does not apply if the deterioration is exclusively due to the examination of the goods.
The latter was the case here. The construction of the bed and the filling of the mattress with water only constitute an examination of the matter.
According to Art. 6 of Directive 97/7/EC (Distance Selling Directive) and the German regulation transposing it, the consumer should in principle have the opportunity to inspect and try out the goods purchased by concluding a distance contract because he could not see the goods before concluding the contract. This includes the taking into use, insofar as it is necessary for testing purposes, even if it leads to a reduction in the value of the goods.
Judgment of the Federal Supreme Court of 3 November 2010 - VIII ZR 337/09
Lower courts:
AG Berlin-Wedding - Judgment of 9 April 2009 - 17 C 683/08
Berlin Regional Court - Judgment of 18 November 2009 - 50 S 56/09
Source: Press release of the BGH
Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
