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.