STC Clause: Evident Damages to be Reported Immediately

An eBay dealer wanted his customer to report any evident damage ASAP and not at any time during the statutory period for warranties. OLG Cologne affirmed this dealer's intention on May 16, 2008 (re 6 U 26/08).


The vendor was sued by a competitor on the grounds of unfair competition (§§3, 4 no. 11, 8 I and III no. 1 UWG i.c.w. §307 I BGB). It is unfair competition, so the statute, when market participants use illegal stipulations that aim to regulate market behavior. The vendor used the clause: "Offensichtliche Mängel sind sofort nach Erhalt der Ware schriftlich anzuzeigen. (Obvious defects are to be immediately reported in writing.)" The court held that STCs generally do not have the quality of a statute because they do not regulate special consumer interests. Without relating to any certain market behavior, STCs usually stipulate the mutual rights and obligations for future contractual relationships. This is also here the case. Through this stipulation, the vendor might be able to get an immediate report of evident damages but this is only a question of warranty and not market behavior. This stipulation exclusively determines the rules for these two parties.


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