The BGH (Bundesgerichtshof – Federal Supreme Court) is of the view that the marketing method practised by the respondent falls within the distance contracts provisions. The customer therefore has a right of withdrawal according to §§ 312d (1), 1st sentence, 355 BGB (Bürgerliches Gesetzbuch – German Civil Code) (=Art. 6 Distance Selling Directive 97/7/EC). The respondent has to inform its customers of this right according to §§ 312c (1) and (2) BGB in conjunction with § 1 (1) No. 9, (2) BGB-InfoV (Verordnung über Informations- und Nachweispflichten nach bürgerlichem Recht – Regulation on Information Obligations and Obligations to Produce Supporting Documents According to Civil Law) (=Arts. 4, 5 Distance Selling Directive 97/7/EC).
In the view of the BGH the contract is not already formed at the time the telephone order is placed or when the goods are dispatched, but rather when the customer gives his signature. From the view of an objective addressee the telephone request of the multimedia package does not represent an offer within the meaning of § 145 BGB. As telecommunications services contracts are typically based upon a complex set of rules, whose conditions cannot be exhaustively stated in the advertisement, the recipient of the order cannot assume that the customer wants to contractually bind himself to conditions of which he is not fully aware. Even if one qualifies the telephone order as an offer, as did the OLG, there is no corresponding acceptance. In the outcome therefore, the respondent first makes an offer with the sending of the contractual text including the standard contract terms, which is accepted by the customer through his signature.
The BGH made clear in its judgment, that with a form of marketing as here chosen, exclusively distance communication methods within the meaning of § 312d (2) BGB (Art. 2(4) distance selling directive 97/7/EC) are employed. The Postident-2 procedure does not mediate the simultaneous physical presence of the parties, but is rather based upon telephone contact and postal dispatch. In respect of the employment of auxiliary persons, the BGH distinguishes between direct and distance communication according to the level of awareness and function of the person employed. If, as here, a postal delivery person is employed, who can and should not give any information relating to contractual content and performance, but who, according to the post office’s standard contract terms, merely identifies people by their personal identity cards, collects signatures and hands over forms and goods, then a distance communication exists between the respondent and the customer.
As the customer, prior to conclusion of contract through his signature, can neither obtain more detailed information or examine the goods, he is just as worthy of protection as if he had concluded a contract through a mere exchange of letters. The lack of possibility to examine the goods as well as to obtain further information from a natural person were, according to recital 14 of the Distance Selling Directive 97/7/EC, precisely the reasons for the creation of provisions on distance contracts. A person, who is limited to the function of an auxiliary person in the narrow sense, cannot counter these deficits. A direct communication as oppose to a distance contract would only then be present, if the person employed was in the position and instructed to give more detailed information to the customer personally, as is the case e.g. with brokers, negotiation assistants or other competent representatives of the business.