Case law

  • Case Details
    • National ID: 16 U 70/07
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 25/10/2007
    • Court: Oberlandesgericht (Appellate court, Schleswig)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 4
  • Headnote
    The prerequisite of a “clearly drafted instruction on his right of withdrawal” under § 355(2) BGB requires that the fact that the law enables him to withdraw from the contract catches the consumer’s eye while examining the contract documents; in other words: the right of withdrawal as such has to stand out strikingly.
    An instruction on the right of withdrawal which states that the period “begins at the earliest upon receipt of the instruction” does not sufficiently make the consumer’s rights clear to him in the terms of § 355(2) BGB. The validity of such a clause cannot be claimed by invoking § 14(1) BGB-InfoV in conjunction with the model instruction in the attached Schedule 2, as these provision are to be deemed void.
  • Facts
    After a an unannounced visit by a commercial agent, the defendant in 2002 had ordered a 10-volume encyclopaedia and in 2003 ordered the associated videos. To pay off both contracts, she paid the agreed monthly instalments of EUR 50 resp. EUR 33. Before the obligations arising from these contracts had been fulfilled, the defendant on 28 October 2005 - after having received an unannounced visit by two of the plaintiff’s employees - signed an “order document” with respect to another large-scale encyclopaedia worth EUR 4.248. A “visit report” which was signed by her on the same day contained a passage which was framed and set apart. It stated in marginally larger type:

    “The buyer can withdraw from his contract declaration within a period of 2 weeks without stating any reasons by notice in text form […] or by returning the purchased goods. The period begins at the earliest upon receipt of this instruction. To meet the deadline is suffices to dispatch the declaration or the return consignment within the period. The declaration of withdrawal is to be directed at [states address]”

    In the copy the defendant was provided with, this passage is additionally highlighted in grey. The defendant refused to accept the goods and obstructed several attempts of delivery. She expressly stated that she refused to accept the goods and to pay the purchase price. The plaintiff claimed the payment of the purchase price. In the first instance, the parties for the mainly disputed whether the instruction on the right of withdrawal met the requirements of § 355(2) BGB with respect to its printing design. The Regional Court has upheld the claim. It held that the instruction on the right of withdrawal was clearly drafted in the terms of § 344(2) BGB, thus was valid and the defendant’s withdrawal therefore was time-barred. With respect to design it stated that the combination of setting a passage apart, framing it and printing it in larger type did not suffice, since these design elements were also used in other passages of the text. However, in combination with the highlighting of the passage in grey, it had to be held that the design sufficiently safeguarded that the right of withdrawal could not be overlooked. The defendant continue to claim that the instruction did not suffice.
  • Legal issue
    The Higher Regional Court Schleswig has overruled the Regional Court’s judgement and dismissed the claim in its entirety.

    The plaintiff is not entitled to the purchase price under §§ 433(2), 398 BGB, since the defendant has validly revoked her declaration of intent leading to the conclusion of the contract under §§ 355(1), (2), (3), 501, 495(1) BGB. In particular, the declaration of withdrawal was made in time, since the 2-week-period under § 355(1)(2) BGB had not started due to the lack of a sufficient instruction according to § 355(2) BGB.

    The instruction on the right of withdrawal is invalid because it does not meet the requirements for being clearly drafted in the terms of § 355(2) BGB with respect to its typographical design. The decisive factor in this context is whether the typographical design has highlighted the instruction on the right of withdrawal to the effect that it cannot be overlooked. This requirement was not met here, although the grey highlighting, and the frame around the instruction to a certain degree had distinguished the instruction from the rest of the text. Setting the passage apart from the rest of the text, the usage of larger type and the fact that the order form in its entirety is clearly arranged, since it was confined to the essential contractual duties and contains hardly any “small print” all contribute to the instruction being findable. However, all these graphical elements have obviously been used rather unobtrusively: the frames are thin, the type of the instruction is scarcely larger than the that of the rest of the text and the grey highlighting – if compared to the other eyecatchers such as the blue “exclusive offer”, the red and green sticker “special offer Christmas 2005” and the colourful head of the document – is rather restrained and therefore less qualified to attract the consumer’s attention. In addition, it is avoided to emphasize the word “withdrawal”, it is neither used in a heading nor is it set apart in the text itself. Thus, the instruction’s typographical design as a whole does not create the required attention.

    In addition, the instruction’s content is insufficient as well. According to § 355(2)(1) BGB, the instruction on the right of withdrawal provided to the consumer does not only have to be clearly drafted but must make “his rights clear to him, satisfying the requirements of the means of communication employed”. This is not the case here. The contested instruction is insufficient, since the statement that the period began “at the earliest upon receipt of this instruction” is too imprecise to make the calculation of the period sufficiently clear to the consumer.
    The plaintiff is barred from invoking § 14(1) BGB-InfoV in conjunction with Schedule 2 to claim that the instruction does indeed suffice, although it did not meet the requirement of § 355(2) BGB. According to this provision, the requirements of § 355(2) BGB and those of the provisions amending it are met, if the model instruction printed in Schedule 2 is used in text form. However, the plaintiff can neither invoke this provision with respect to the graphical design, nor with respect to the content of the instruction. With respect to the graphical design, the instruction used by him does not correspond to the model in Schedule 2, since the it does not contain centred headings set in bold type stating “Instruction on the right of withdrawal” and/or “Right of withdrawal”. Instead, the instruction only adopts the frame and the text used in the model. As a whole, the instruction used by the plaintiff has a much smaller eye-catcher quality then the model instruction. With respect to its content, § 14(1) BGB-InfoV in conjunction with Schedule 2 is to be deemed void to the extent that it contradicts the requirements set by § 355(2) BGB.
  • Decision

    Full text: Full text

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