Remote Sales Instruction also for B2B?

It would appear to make common sense that while operating a company exclusively operating B2B, you do not have to obey the B2C rules. Sorry, OLGHamm decided otherwise on February 28, 2008 (re 4 U 196/07).


The plaintiff runs an Internet platform on eBay selling computer parts. He complained about a competitor not instructing customers clearly, and completely understandable. The defendant, a major computer center in Europe regularly exchanges its hardware. The replaced parts are sold either on eBay or other platforms. In the “guaranty” section of the defendant’s webpresentation concerning payment, mailing, etc., reads as follows:

“We give no warranty or guaranty, exchange or accept a return of the sold goods. We exclusively sell to business customers, therefore a right of countermand is barred. The buyer accepts these stipulations when he places his bid.”

The court ruled that in this particular case, the defendant still has to be obey the rules for instructing consumers as per §§312c, 312d, 355, 357 BGB. The defendant failed to show that his operations deal exclusively with other businesses. It is commonly accepted knowledge that the rules for instructing consumers do not apply to B2B transactions. However, because the defendant did not prove beyond a reasonable doubt that his business is exclusively B2B, he must obey the aforementioned rules and regulations before being adjudged not responsible for instructing his customers..

§4 no. 11 UWG sets forth the rule that in competition the consumer is to be protected and this protection supercedes the company’s right and desire to simply do business with other companies. This clause is hidden in the stipulations for guarantee and can therefore be easily ignored. The court considered this scenario as an unlawful circumvention of consumer law. Generally, it remains uncontested that a business may legally only sell to other businesses – as this is guaranteed by the principle of contractual freedom. When B2B is to be case, then such must be clearly and transparently communicated to the potential customer. In the case, this was not done. It is of utmost importance that the rules and regulations, particularly for remote sales must be obeyed in order to not violate the rules of unfair competition and thereby ensure the free flow of commerce.

It can be easily imagined that any customer could be considered a business customer. However, mentioning the relevant limitation in an area that has nothing to do with determining the party of the sale’s contract is an unlawful circumvention of the law. The right to countermand has nothing to do with warranty. Further, the defendant did not otherwise show how he wants to filter out consumers from business clients. In fact, he artfully dodges his duty to do so.

Since the defendant infringed upon a basic tenet  of competition law, he has to forbear this clause in the future §8 UWG). In other words, the defendant must change this clause or continue to lose in courts of law.

Published on the old CMS: 2008/5/23
Read on the old CMS till November 2008: 2,448 reads

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