Advancing Postage for the Return of Unsold Goods

When selling goods long-distance, customers often make use of their right to return the sold articles. Following §357 II 2 BGB, the vendor has to carry the costs of returning the unsold article – whenever a sale was not made, even for mail orders. The defendant in this case, however, wanted to use a trick to reduce his postage costs. He wrote in his standard terms and conditions, that he refused to accept parcels with postage unpaid. However, he promised to refund the customer immediately after receipt of the returned item. Is this trick permissible? The Hanseatisches OLG decided this case on February 14, 2007 (re 5 W 15/07).

A direct competitor of the defendant filed for a temporary injunction and won the case. Any vendor is obligated by statute (§312 b BGB) to instruct the consumer on his or her correct legal rights when purchasing long-distance. This is the case, when buying on eBay. The above-mentioned trick clearly violates the statutory rule that the vendor must pay for returning an unsold item (§357 II 2 BGB). The interested consumer can only understand this concept as that he will have to advance the postage costs, when the seller clearly says that he will not accept parcels without the postage paid, whenever the value of the item to be returned is more than €40. Even only having to advance the return costs cannot be considered legal.

Therefore, this business is employing business practices that violate the law and so infringes the rule in §4 no. 11 UWG .The company is infringing rules that aim to regulate the behavior of participants on the market.

A further requirement for the claim to compel to refrain the use of such standard terms and conditions has also been met. This concept is to “not just insignificantly” affect fair competition to the disadvantage of the market participants. Such danger results from the possibility that single competitors might also start applying this. But also the consumer is endangered since advancing the return costs is also significantly encumbering him financially. Besides that, the uncertainty of “uncontractionally” returning the unwanted goods with postage unpaid would enable the seller to withdraw from the contract.

This stipulation is also for another reason invalid as it violates a major principle in the law of standard terms and conditions. It is unreasonably disadvantageous towards the consumer for the user of standard terms and conditions to enhance his own interests at the expense of one’s contractual partner. §307 BGB sets the general rule that every and all standard terms and conditions must be fair, i.e. not unreasonably disadvantageous for any party.

The defendant was ordered to refrain from using that trick on eBay. In any and all cases of infringement, the defendant would have to a fine in the discretion of the court but up to € 250,000. In the case such fine cannot be collected, detention up to a half-year.





Published on the old CMS: 2008/1/2
Read on the old CMS till November 2008: 106 reads