Liability for eBay account in case of unauthorised use?

The Federal Court of Justice (BGH) in Karlsruhe had to decide the question of under what conditions the holder of an eBay member account is contractually liable for statements made by a third party under unauthorised use of this member account.

The holder of an eBay member account maintained a password-protected member account with the internet auction house eBay. In March 2008, a complete catering establishment with an opening bid of 1 € was offered for sale using this account, whereupon an interested party made a bid of 1,000 €. The following day, the disputed auction was ended prematurely by withdrawal of the offer. The bidder was the highest bidder at that time. He demanded that the holder of the eBay member account provide him with the catering establishment, the value of which he estimated at 33,820 €, in exchange for payment of 1,000 € (payment against delivery). Following the unsuccessful expiry of the period set for this, the bidder claimed damages for non-performance in the amount of 32,820 €.

The holder of the eBay member account argued that the offer had been placed on the eBay internet platform without her participation and without her knowledge by her husband. However, the following clause can be found in eBay's Terms and Conditions:

"Members are generally liable for all activities carried out using their member account." …
Both lower courts dismissed the bidder's claim, whereupon he filed a revision with the BGH.

Court's decision
The Federal Court of Justice (BGH) states in its judgment (Az. VIII ZR 289/09) dated 11.05.2011 that the bidder's revision is unsuccessful.

The rules of agency law also apply to transactions on the internet. Statements made in the name of another only bind the person named on the internet if they are made in the exercise of existing authority to represent, or have subsequently been ratified by the person named, or if the principles governing ostensible authority or apparent authority apply. However, mere careless safeguarding of the contact details of an eBay member account does not in itself result in the account holder having to account for statements made by a third party under unauthorised use of this account.

An attribution of third-party statements to the account holder also did not result from eBay's Terms and Conditions in the present case. Since the Terms and Conditions are only agreed upon between eBay and the holder of the member account, they have no direct effect between the offeror and the bidder. On this basis, no purchase contract for the catering establishment was concluded between the parties in the present case, and the claim was therefore to be dismissed.

Conclusion

This landmark decision by the Karlsruhe judges raises the question of the extent to which one can rely on eBay offers at all. Ultimately, the holder of an eBay member account can always claim – regardless of the criminal nature of such a claim – that the posted offer was placed by an unauthorised third party. The injured party must then seek compensation from the actual contracting party – insofar as he is able to identify him at all. However, in many cases no contract will have been concluded in the first place, since the BGH has rejected the applicability of eBay's Terms and Conditions to third parties.