Case law

  • Case Details
    • National ID: 5 W 156/06
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 18/07/2006
    • Court: Kammergericht Berlin (Appellate court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Distance Selling Directive, Article 4, 2. Doorstep Selling Directive, Article 4
  • Headnote
    An instruction on the right of withdrawal on an eBay-seller’s the web presence does not constitute a communication in “text form” as per § 355(2)(1) BGB.
    With respect to eBay transactions it is to be assumed that there is a predominant possibility of the instruction on the right of withdrawal not being provided in text form until the contract is concluded (in any case not prior to its conclusion). This is because on eBay the goods are offered in manner legally binding to the seller, with the consequence that a contract of sale is concluded in the moment the consumer makes an according declaration of intent. In this case the period of time in which the right of withdrawal has to be exerted is as per § 355(2)(2) BGB one month.
  • Facts
    The applicant seeks injunctive relief against the respondent’s web presence on eBay. The respondent is a competitor of the applicant. Under the heading “carrying out the auction / terms and conditions” it inter alia says:
    Right of withdrawal
    You can … revoke your declaration of intent leading to the contract within 2 weeks. The period at the earliest begins upon receipt of the ordered goods. … The declaration of withdrawal is to be communicated to: … company … (address, fax number and e-mail address are stated in the following.)
    The applicant claims that this information about the right of withdrawal does not meet the legal requirements. In her opinion, the information is to be designed clearly and has to be set apart from the rest of the text by means of different colour, bigger letters, spaced writing or bold type so that it cannot be overlooked. It was not sufficient to typographically accentuate the heading “right of withdrawal”. In addition, the period did not begin upon receipt of the ordered goods but rather when the consumer receives an instruction on his right of withdrawal meeting the legal requirements. Furthermore, the right of withdrawal could not only be exerted within 2 weeks, but within one month beginning from the receipt of the instruction: This was due to the fact that the instruction did have to be communicated in text form, which was not the case with respect to a text solely published on the internet. Therefore, the relevant information had only been provided after the conclusion of the contract on eBay with the delivery of the ordered goods.

    The regional court has dismissed the application.
  • Legal issue
    The Higher Regional Court for the State of Berlin has modified the Regional Court’s judgement upon the applicant’s immediate administrative complaint and granted the desired interlocutory injunction.

    With respect to the period of 2 weeks for the exertion of the right of withdrawal, the applicant justifiably objected to the content of the instruction on the withdrawal right provided by the respondent. Insofar, the applicant can demand from the respondent to cease and desist from providing an instruction on the right of withdrawal with this wording as per § 8(1)(1), (3) no. 1; §§ 3, 4 no. 11 UWG (Act against Unfair Competition).

    The right of withdrawal guaranteed in § 355 BGB is intended to protect consumers. To ensure this protection, an instruction on the right of withdrawal which is as comprehensive as possible, unmistakable and unambiguous from the perspective of the consumer is necessary. These criteria are implemented by the legal provisions governing form and content of the instruction on the withdrawal right (here: § 312c(1)(1) BGB and related provisions). The purpose of the instruction on the withdrawal right is not only to notify the consumer of its existence, but also to enable him to exert it properly.

    The instruction in question here does not meet these requirements because it contains a 2 week period while the actual period to declare the withdrawal from the contract was 1 month. This partially false information can therefore in some cases (e. g. after 3 months have passed) prevent a consumer from exerting his (still) existing right of withdrawal by leading him to the false presumption that the deadline for its exertion had already passed.

    The period for the exertion of the withdrawal right with respect to distance sale contracts is laid down in § 312d(1) BGB read in conjunction with § 355 BGB. It is in principle 2 weeks but is extended to a full month if the instruction, which has to be provided in textual form, is not communicated to the consumer until after the conclusion of the contract (§ 355(2)(2) BGB. The latter is the case here. This is due to the fact that the information in question here was indeed accessible on the respondent’s web presence before the conclusion of the contract, but does not constitute an instruction in “text form” which is “provided” to the consumer.

    “Text form” in the terms of § 126b BGB inter alia requires that the relevant declaration is made as a document or in another manner suitable for its permanent reproduction in writing. Accordingly, the instruction on the right of withdrawal accessible on the respondent’s web presence has not been provided in “text form”, since texts which have been published on the internet but have not been conveyed to the recipient (e. g. via e-mail) can only meet the requirements of § 126b BGB if they are actually perpetuated on the side of the receiving consumer (e. g. by printing the content of the site or by downloading and saving it on one’s own hard disk).

    As the information of the respondent’s web presence is no communication in “text form” in the terms of § 355(2)(1) BGB, it is to be assumed with respect to the eBay transactions in question here that there is a predominant possibility of the instruction on the right of withdrawal not being provided in text form until the contract is concluded (in any case not prior to its conclusion). This is because on eBay – as asserted by the applicant - the goods are offered in manner legally binding to the seller, with the consequence that a contract of sale is concluded in the moment the consumer makes an according declaration of intent. In this case the period of time in which the right of withdrawal has to be exerted is as per § 355(2)(2) BGB one month.

    In addition, the applicant has rightly objected to the content of the instruction with respect to it stating that the period (for the declaration of withdrawal) was beginning at the earliest upon the receipt of the ordered goods. Therefore the complaint against the Regional Court’s order rejecting the application for injunctive relief was also successful in this point. Insofar, the applicant can demand from the respondent to cease and desist from providing an information on the withdrawal with this wording as per § 8(1)(1), (3) no. 1; §§ 3, 4 no. 11 UWG.

    The mentioned wording is – contrary to § 312c(1)(1) BGB, Art. 240 EGBGB (Einführungsgesetz zum Bürgerlichen Gesetzbuch – Act on the Introduction of the Civil Code), § 1(1) no. 10 BGB-InfoVO (Verordnung über Informations- und Nachweispflichten nach bürgerlichem Recht - Ordinance on duties to supply information under civil law) – not sufficiently clear and comprehensible to inform the consumer on the conditions of the exertion of his right of withdrawal. Under § 355(2)(1) BGB, primary starting point for the beginning of the period is the communication of the instruction on the right of withdrawal in text form (other starting points can be found in § 312d(2) BGB). An instruction on the right of withdrawal in text form has not been communicated with the publication of the information on the internet. The period only begins “upon receipt of the ordered goods” if the consumer has been provided with an instruction in “text form” before.

    Although the Regional Court has rightly pointed to the expression “at the earliest” and also correctly explicates that this wording does indeed not exclude a later beginning of the period and the instruction is not wrong in this point, this is of no relevance to the case. This is because the law does not only require the information to be “correct” – which is self-evident – but also to be “clear and comprehensible” with respect to the conditions of the right of withdrawal, e.g. the beginning of the period. This is not the case with the wording in question here. A consumer who – for any reason whatsoever – has not been provided with instruction in text form is kept absolutely in the dark about the fact that the period has definitely not even begun because of this. This shows that the instruction on the internet was not “clear and comprehensible” on this point. Instead, a correct instruction should have stated that the period did – at the earliest – begin upon the receipt of an instruction in textual form to be communicated later (cf. Schedule 2 to § 14(1) and (3) BGB-InfoV
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result