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BGH VIII ZR 395/03 VIII. Civil Senate VIII ZR 395/03
03 November 2004
Translated by:
Tony Weir
Sir Basil Markesinis

§312 d (4) BGB
Since contracts of sale made by means of Internet-auction are formed by offer and acceptance under §145 ff. BGB and not by a Zuschlag (hammer-blow) under §156 BGB, the consumer’s right to withdraw from a contract with a trader is not excluded by §312 d (4) no. 5 BGB

The claimant is a dealer in gold and silver ornaments. On 7 September 2002 he placed for auction on the E-Bay website a “15 carat diamond bracelet” with a starting price of €1, bids to be made within one week. On 14 September 2002 the defendant made the highest bid (€252.51) but now refuses to accept and pay for the bracelet.

The claimant sues the defendant for the sum of €252.51 plus delivery costs of €11, that is, €263.51 plus interest. The Amtsgericht dismissed the claim but permitted an appeal, which the Landgericht dismissed.

The claimant’s appeal must be dismissed. He has no claim under §433(2) BGB for ayment of the price of the bracelet because the defendant’s declaration of intention to buy it was effectively withdrawn (§§312 d (1), 355 BGB).

1. The court below was right to hold that on 14 September 2002 the parties concluded a contract for the sale and purchase of the bracelet by means of a so-called Internet-auction, that the defendant was entitled to withdraw from the contract under §355 BGB since the provisions of §312 d (1) BGB were fulfilled, and that the contract formed on-line between the claimant as trader (§14(1) BGB) and the defendant as consumer (§13 BGB) constituted a distance contract in the sense of §312 d (1) BGB. … The appellant, however, maintains that the defendant had no right to withdraw since the contract was formed by auction (§312 d (4) no. 5 BGB).

2. The court below was correct to hold that the right to withdraw was not barred by §312 d (4) no. 5 BGB. That provision admittedly provides that where a distance contract is concluded by auction (§156 BGB) there is, in the absence of contrary provision, no right of withdrawal. The contract in the present case was not, however, such a contract.

a) The contract for the sale of the bracelet by internet auction on E-Bay was not concluded by “auction” within the meaning of §156 BGB, which lays down that a contract by auction is concluded only by the fall of the hammer (Zuschlag). Such a Zuschlag is a declaration of intention by the auctioneer that he accepts a bid (BGHZ 138, 339, 342). Since there is no such Zuschlag when sales are made on the eBay website, they are not auctions in the sense of §156 BGB.

aa) The contract between the parties made by internet-auction was not concluded by a Zuschlag under §156 BGB but by offer and acceptance (the parties’ declarations of intention) under §145 ff. BGB. By putting up for auction a “15 carat diamond bracelet starting at €1.— ” the claimant made a binding offer to whoever, within the time-frame laid down, made the highest bid. This was the defendant, whose bid constituted an acceptance of the claimant’s offer. As to their content (§§133, 157 BGB) the declarations of intention were consistent with the terms as to conclusion of contracts contained in §7 of E-Bay’s general conditions of business which the parties had accepted. These conditions did not provide for any Zuschlag in the sense of §156 BGB, and E-Bay let no hammer fall.

bb) The appellant argues that the effluxion of the time allowed for bidding amounted to a Zuschlag and that thus the internet-auction constituted an auction under §156 BGB. This cannot be accepted. The Zuschlag needed for the formation of a contract under §156 BGB is a declaration of intention, that is, a human utterance designed to result in a legal transaction. Mere lapse of time is not, and cannot replace, such a declaration of intention. The period stipulated by the claimant for the internet-auction merely set a time within which his offer had to be accepted by the highest bidder (§148 BGB). .. The contract in this case came about when the defendant accepted the claimant’s offer by making the highest bid within the time limit set by it. The validity of the offer is unaffected by the fact that as it was directed to the highest bidder, the identity of the buyer would not be clear until the auction was over. b) Only in such distance sales contracts as are concluded by a Zuschlag emanating from the auctioneer under §156 BGB is the right of withdrawal excluded by §312 d (4) no. 5 BGB. This follows from (aa) the wording of the provision, (bb) its place in the system and (cc) its meaning and purpose as inferable from the legislative materials.

aa) §312 d (4) no. 5 provides that there is no right of withdrawal in distance sales contracts “in the form of auctions (§156 BGB)”. It is true that in normal parlance the Internet-auction in our case can be called an auction, even if the contract did not come about under §156 BGB, but by its very wording of the exception contained in §312 d (4) no. 5 BGB applies only to auctions where the contract is formed by bid and Zuschlag under §156 BGB… The wording of the rule makes it impossible to extend it to cover auctions in which the distance sales contract is concluded otherwise than under §156 BGB.

bb) Extensive application is also contraindicated by the place of the provision in the system of the law. §312 d (4) no. 5 is an exception to the general rule laid down in §312 d (1) BGB that in distance contracts of sale formed with a trader the consumer has a right to withdraw. The place of this rule as an exception from the legislative principle calls for a restrictive rather than an extensive interpretation…

cc) The travaux pr┬┐┬┐paratoires and the purpose of the rule inferable from them also indicate that the exceptional exclusion of the right of withdrawal should be applied restrictively rather than extensively. (1)The right of withdrawal in §312 d BGB stems from the community directive on distance contracts which granted the consumer a right of withdrawal…. (2) It is true that the directive on distance contracts is by its Art. 3(1) inapplicable to “contracts concluded at an auction”, but this does not imply that in the case of internet-auctions as here there should be no right of withdrawal.

The Directive does not define “auction”. Neither the wording of the directive nor the materials on the basis of which it was drafted indicate whether internet-auctions, where the contract is formed otherwise than by the auctioneer’s Zuschlag, are to be excluded. The Council said merely that the exclusion of auctions from the application of the directive was justified by the “special features of auctions”. This falls short of suggesting that in addition to auctions of the traditional type those conducted over the internet should also be excluded. The fact that the internet is not mentioned in this context although the use of the internet was already widespread in 1997 and is mentioned in the first appendix as an example of distance communication rather indicates the reverse.

Quite apart from that, even if an internet auction could be seen as an auction in the sense of Art. 3(1) of the directive, that would not justify an extensive interpretation of §312 d (4) no 5 BGB. In order to maximise the protection of consumers the directive lays down only minimum standards for the member states. If the directive itself is restrictive, it is still open to the member states, consistently with other rules of community law, to adopt more generous rules for consumer protection, including a rule which narrows the exception laid down for auctions and grants the consumer a right of withdrawal where the directive lays down no mandatory rule. Thus art. 14(1) of the directive on distance contracts expressly states that member states may adopt or maintain, consistently with the EC Treaty, rules in the area covered by the directive which are stronger and produce a higher level of consumer protection.

(3) Like art. 3(1) of the directive, the government draft initially provided that the law should not apply to distance contracts “concluded at auction” without making any reference to §156 BGB. One of the reasons given was that auctions at a distance (for example, by the internet) would be unduly impeded if the consumer had a legal right to withdraw, yet this was to apply only “to contracts where the conclusion took place directly after the bid by a virtual Zuschlag”. Whether the draftsman of the reasons was using “Zuschlag” as a legal term (§156 BGB) or in some untechnical sense is not clear, and does not really matter.

The protection afforded by the government draft to the consumer in contracts of sale by auction was strengthened on the advice of the legal committee…The provision that the right of withdrawal was not to apply in auctions was narrowed by an explicit reference to §156 in the specification of auction. …

One can conclude from the legislator’s acceptance of the recommendations of the legal committee that the consumer was to have greater protection than under the government draft or the directive itself. .. The reasons given by the legal committee included the view that most “so-called internet auctions” were not auctions “in the legal sense” as defined in §156 BGB “in which the offer made by the bidder is accepted by Zuschlag”: the final Zuschlag, being the hallmark of an “auction”, should also be required in auctions at a distance. This underlay the legal committee’s formulation of the relevant provision. Given that the legislator accepted the recommendation of the legal committee that there should be a right of withdrawal except in “true auctions at a distance”, it is impossible to extend §312 d (4) no. 5 BGB to cover internet auctions where, as in the case at hand, the contract comes about otherwise than by bid and Zuschlag.

(4) Consideration of the protective purpose of §312 d (4) no. 5 BGB and the respective interests of the parties also leads to the conclusion that the provision should be interpreted narrowly rather than extensively. The statutory right of withdrawal is designed to protect the consumer from the risk inherent in distance contracts that normally he has not been able to subject the goods to a visual inspection. The need for protection also exists in internet auctions of the kind before us: the only information the bidder obtains about the goods on offer is usually what is provided on the internet, so that the consumer who buys an object from a trader on the internet is exposed to the same risks and is equally in need of protection as in other methods of effecting purchases at a distance. …

Neither the trader nor E-Bay has any countervailing interest. The exclusion of the right of withdrawal under §312 d (4) no. 5 is based on the notion that if such a right existed sales by auctions would be rendered more difficult, but such a fear is baseless in internet auctions by E-Bay, whose own general conditions of business applicable to the sale in question assume that the bidder does have a statutory right of withdrawal…

c) Finally, §312 d (4) no. 5 BGB cannot be applied by analogy to internet auctions of the kind before us. Analogical application of a rule of law is appropriate only if the law has a lacuna at odds with its purpose. There is no lacuna here which could be attributed to an unintentional departure from the regulation envisaged in the prelegislative materials. It is clear from the documents relating to distance contracts that the legislator applied his mind to contracts made by internet auctions and adopted a rule for them that excludes the right of withdrawal only as regards such contracts as are formed by bid and Zuschlag as laid down in §156 BGB…