Admonishment Trap:  Standard Terms and Conditions are Mandatory!

Two courts recently decided that companies selling online can be admonished if they do not inform a consumer, when a contract is closed (LG Dresden of January 4, 2008, re 4 HK O 433/07EV; LG Leipzig of December 28, 2007, re 06 HK O 4379/07).

Following §1 I no. 4 BGB InfoVO, the consumer is to be instructed on when a contract will be final. Often eBay or online merchants have a clause in their STC: “Our offers are subject to confirmation. (Unsere Angebote sind freibleibend). A contract will be closed only when delivery has been initiated or expressly confirmed in text.“


Such stipulation is null and void pursuant to (§307 BGB) and using this contractual clause therefore is an act of unfair competition (§§3, 4 no. 11 UWG). An act of unfair competition is subject to admonishment and damages. The clause’s user does not clearly say when the vendor will accept the customer's offer and therefore create a contract. In contrary, it strongly veils the act of closing a contract. This is also true for §9 eBay- STC and especially for the “Buy Now / Sofort-Kauf” option. To deviate from this special contractual scenario to the disadvantage of the buyer is unreasonable ant therefore violates §307 BGB.

Can STC for an online shop be used for eBay?

No. Contracts are closed differently in online shops and in eBay so that using the same STC is meaningful. In eBay, the purchaser is immediately giving a binding offer, while in an online shop, the  will have two weeks to revoke his offer and so void the contract when he has been informed in text of this right. These are only the most striking differences and not a complete listing of the differences them; only to give you a first impression.


Published on the old CMS: 2008/8/3
Read on the old CMS till November 2008: 1638 reads


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