The BGH (Bundesgerichtshof – Federal Supreme Court) initially stated that a sale upon approval was validly concluded upon expiry of the time limit for accepting the sale. In contrast to the view of the court below, the respondent validly withdrew from the contract according to §§ 312d (1), 1st sentence BGB by returning the goods on 20.11.2002.
The BGH argued that without doubt a distance contract within the meaning of §§ 312b (1) and (2) BGB was concluded, so that the respondent had a right of withdrawal according to §§ 312d (1), 1st sentence, 355 BGB. In respect of the beginning of the time limit for withdrawal, the BGH stated that the right of withdrawal is predominantly understood as a special form of rescission right, which through withdrawal of the consumer’s declaration to conclude the contract brings about a liquidatory relationship. This also corresponds to Art. 6 Directive 97/7/EC. The right of withdrawal can therefore arise at the earliest when the contract of sale becomes valid, thereby only after expiry of the time limit for agreeing the sale on 19.11.2002. In any event, the end of the time limit for agreeing the sale is to be regarded as the beginning of the time limit for exercising the right of withdrawal, because at this point in time the contract of sale is not yet binding upon the buyer and its validity is dependent upon his agreement to the sale.
The BGH supports its argument furthermore on the different aims of the time limit for agreeing the sale in § 455 BGB on the one hand and the right of withdrawal according to § 312d BGB on the other hand. Whereas the aim of the time limit for accepting the sale in the context of sale on approval is primarily to give the customer opportunity to examine the suitability of the good, the law on distance contracts aims to protect against the specific dangers of contracts with unknown third parties. The regulatory purpose of distance contracts law as consumer protection law and the purpose of sale on approval thus stand alongside one another. If the buyer who has concluded a sale by approval enjoys both the contractual approval time limit of § 455 BGB DK an LMS – wohl 454 BGB? as well as the statutory right of withdrawal in §§ 312d, 355 BGB, then these time limits should remain available to him to their full extent.
The BGH therefore arrived at the conclusion that the time limit for withdrawal had not yet expired, as the respondent returned the graphics portfolio to the claimant by post on 20.11.2002 and thereby exercised his right of withdrawal (312d (1), 1st sentence, 355 (1), 2nd sentence BGB). As the claimant additionally failed to correctly inform the respondent about the beginning of the time limit for withdrawal, then the respondent’s right of withdrawal had simply not expired according to § 355 (3), 3rd sentence BGB. In the absence of a valid contract of sale, the claim is therefore unfounded, and is accordingly to be dismissed.