The appeal was dismissed. The claimant had a right to restitution of the purchase price and return of the device against the defendant. This right is not based, however, as was assumed by the court of appeal, on article 812 of the German Civil Code but on article 436 (1) of the German Civil Code in conjunction with articles 433, 312b, 312d, and 355 ff. of the German Civil Code. It is a legal right to restitution based on the provisions on the right of withdrawal from distance selling contracts. That the contract between the parties is void is not relevant for this. It is a distance selling contract in the sense of article 312b (1) sentence 1 of the German Civil Code. The claimant has exercised her right of withdrawal under article 355 of the German Civil Code in good time. It follows that under articles 357 (1) sentence 1 in conjunction with article 346 (1) of the German Civil Code the claimant has a right to restitution of the purchase price and delivery costs.
That the contract is void being contrary to public policy under article 138 of the German Civil Code is not opposed, in principle, to the right of withdrawal under article 312d (1) of the German Civil Code. No exception may be found in the present case either. A right of withdrawal also exists when the declaration of intent of the contract is invalid. The purpose of the right of withdrawal in a distance selling contract is to give the consumer a right free from material conditions, the exercise of which allows him through simple means to unilaterally withdraw from the contract. He is to have this right in addition to the usual rights arising out of the contract. This follows from paragraph 14 of the Preamble to the Directive 97/7/EC, according to which, the right of withdrawal does not affect the rights of consumers provided by Member States. The consumer therefore has the choice to withdraw from the contract under articles 312d and 255 of the German Civil Code with the consequence of a restitution under articles 346 ff. of the German Civil Code or to transform the contractual relation to one requiring restitution under the principles of unjustified enrichment. Given the consumer protection imperative in distance selling there is no reason to put the consumer at a disadvantage if the contract cannot only be contested but is also void. The protection imperative of the right of withdrawal requires that the consumer have the possibility to withdraw from the contract without having to discuss the question of the contract being void with the professional. The consumer thus has the choice between withdrawal and relying on the contract being void. The possibility of contesting a contract that is void has been recognised for a long time in German law. For the withdrawal from a contract that is void the same applies as for contesting it. Excluding the right of withdrawal on the basis of bad faith under article 242 of the German Civil Code is required, if at all, when the professional appears particularly worthy of protection on the facts (for instance where the consumer deceived him). This situation does not appear on the facts of the case.
The determination of potential exceptions remains open.