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Case Details

Case Details
National ID VIII ZR 295/01
Member State Germany
Common Name link
Decision type Other
Decision date 19/03/2003
Court BGH (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Distance Selling Directive, Article 6, 1.

1. In a distance contract where the good to be supplied is assembled from prefabricated parts to the order of the consumer, which can be dismantled with little effort and without compromising functionality, the consumer’s right of withdrawal cannot be excluded according to § 312d (4) No. 1 BGB (=Art. 6 (3), 3rd indent Distance Selling Directive – goods made to consumer’s specifications).
2. The burden establishing and proving exclusion of the right of withdrawal according to § 312d (4) BGB is borne by the business.
The claimant seeks rescission ab initio of a contract of sale for a laptop. The respondent carries on a mail order business for computers which are built to the specifications of the customer in a building block system (built-to-order).
By letter of 8.7.2000 the claimant ordered a laptop with his chosen configuration as well as various ancillary components (automatic power supply unit, reserve battery, external hard drive, ISDN card, TV card, CD burner). On 4.8.2000 the claimant received the laptop as well as the reserve battery and ISDN card. The respondent sent him an invoice for 10290,14 DM in total, of which 5070 DM was to be paid immediately; in respect of the balance the parties agreed on a finance arrangement through a bank. The claimant withdrew from the contract of sale by letter of 18. 8. 2000 and sought from the respondent repayment of the sale price as paid by him and through the bank as well as costs for examination and return of the unit and loss of use.
The Landgericht (district court) allowed the claim in part. On appeal by the claimant the Oberlandesgericht (appellate court/Berufungsgericht) entered judgment to the effect that the respondent was bound to repay the claimant the sale price paid to him as well as postage costs on a payment versus delivery basis. The respondent’s Revision (appeal on points of law) to the BGH (Bundesgerichtshof – Federal Supreme Court) was unsuccessful.
The Notebook was merely assembled from prefabricated standard components, which could be disassembled with relatively little effort without compromising its substance or functionality.
The aim of the rule in distance contracts is the protection of the consumer from the dangers of a distribution or service system organised for distance sales (cf. also recitals 5 to 7, 18, 19 Directive 97/7/EC). A characteristic of distance contracts is that the provider and consumer do not have physical contact with each other and that the consumer does not generally have the opportunity to inspect the good or service prior to conclusion of contract. To counteract the danger of wrong decisions by the consumer which can arise in such circumstances, Art. 6 of the Directive and § 312d (1) BGB (formerly § 3 FernabsG – Distance Contracts Act) gave the consumer a right of withdrawal.
This right of withdrawal is excluded inter alia where the business can prove that the good has become worthless following use or otherwise and therefore a right of withdrawal is not just and reasonable for the business.
From the scheme of both the directive as well as § 312d BGB it is apparent that the right of withdrawal should only be excluded in exceptional circumstances. The consequence for the application of § 312d (4) No.1 BGB is that it is not sufficient to constitute a manufacture according to customer’s specifications, if a consumer by his order merely causes the good to be assembled and therefore - necessarily – gives more detailed particulars as to its properties. Otherwise, the right of withdrawal would merely depend on whether (one and the same) good is held in stock or is only produced to order. The business would then be able to exclude the consumer’s right of withdrawal by not holding standard components in stock but rather only producing them on order. This would render the consumer’s right of withdrawal meaningless across wide sectors of distance sales, which would contradict the exceptional character of the rule.
Only where the business would suffer special disadvantages, which are directly associated with the production according to the customer’s specifications, could a consumer right of withdrawal and the redemption of the good – in exceptional circumstances – not be just and reasonable for the business. This is the case where the manufacture of the good could not simply be undone and furthermore where the good, by the specifications of the consumer, was individualised to such an extent that it could no longer be resold, or only with considerable difficulty/price reduction.
In the present case, these conditions are not present because a final configuration and dismantling of the notebook assembled from prefabricated electronic components was possible without problems. The reconstruction of the state prior to order by the claimant was indisputably possible with an effort of three working hours at 150 DM per hour, which corresponds to less than 5% of the value of the good.
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