Return of defective goods upon withdrawal from a distance selling contract?

The Federal Court of Justice (BGH) had to decide whether the purchaser of a water bed, which became worthless to the internet retailer for the most part after being filled with water, has a claim to reimbursement of the full purchase price upon withdrawal from the distance selling contract, or whether the retailer can reduce the value compensation to that extent.

In August 2008, the parties concluded a purchase agreement by e-mail for a water bed at a price of €1,265.00. The offer of the internet retailer, who offered the water beds for sale via the internet, had been sent to the purchaser by e-mail as an attached PDF file. The text of the e-mail contained a withdrawal notice with the following addition:

"With regard to the withdrawal notice mentioned above, we additionally point out that the filling of the water bed mattress regularly leads to a deterioration, since the bed can no longer be sold as new."

The water bed was paid for in cash by the purchaser and subsequently delivered to him. The purchaser assembled the water bed and filled the mattress with water. He then exercised his right of withdrawal. After the water bed was collected, he called on the seller to refund the purchase price. The internet retailer refunded only an amount of €258.00 and argued that the bed was no longer saleable; only the heating element with a value of €258.00 could be reused. In this regard, he also referred to the general terms and conditions sent to the purchaser.
Both the Local Court (AG) Berlin Wedding and the appeal before the Regional Court (LG) Berlin granted the action for refund of the remaining purchase price of €1,007.

Decision of the court
The Federal Court of Justice (BGH) made a decision in its judgment of 03.11.2010 – VIII ZR 337/09 on the obligation to provide value compensation by a consumer upon withdrawal from a distance selling contract in the sense of the courts below. In its press release, the BGH states that the purchaser can claim refund of the full purchase price despite the possible loss in value that may have occurred, since he only examined the goods despite filling the water bed with water.

If a received item has deteriorated or has been entirely destroyed, the purchaser must provide value compensation. A purchaser must even provide value compensation for deterioration resulting from intended use if he has been notified in text form no later than at the time of contract conclusion of this legal consequence and of the possibility to avoid it.

Although this was the case due to the addition in the retailer's general terms and conditions, according to the view of the Federal Court of Justice (BGH), no value compensation is to be provided in this case. An obligation to provide value compensation does not exist if the deterioration is exclusively attributable to the examination of the item. The latter was the case here, since the assembly of the bed and the filling of the mattress with water merely constituted an examination of the item.

The purchaser should be able to examine and test the goods purchased in distance selling contracts because he cannot see the goods before conclusion of the contract. This includes putting them into use to the extent necessary for examination purposes, even if it leads to a reduction in value of the goods.

Conclusion

In its judgment, the BGH strengthens the rights of consumers upon withdrawal from a distance selling contract. If putting the goods ordered via the internet into use is necessary to examine them, any deterioration of the goods upon timely withdrawal is borne by the internet retailer. A corresponding provision in the general terms and conditions, which is intended to prevent precisely such damage, is likewise ineffective in that case.