Return costs after withdrawal – requirements for contractual agreement

Under § 357 Abs. 2 S. 3 BGB, a consumer may in certain circumstances be required to bear the costs of returning goods in the event of withdrawal of their contractual declaration aimed at the conclusion of a distance sales contract. However, according to a recent decision of the Higher Regional Court (OLG Brandenburg) (judgment of 22.02.2011 – 6 U 80/10), this applies only to the "regular costs of return" and only if this is based on a corresponding contractual agreement.

It is now accepted by several higher courts that return costs can indeed be charged to the consumer, but this must happen explicitly within the scope of a contractual agreement (e.g. through general terms and conditions), as for example the Higher Regional Court (OLG Hamburg), the Higher Regional Court (OLG Hamm) and the Higher Regional Court (OLG Stuttgart). The reference to the cost-bearing obligation within the scope of the withdrawal information regarding the withdrawal consequences does not meet these requirements, since these presuppose a corresponding agreement.

According to § 357 Abs. 2 S. 3 BGB

"the regular costs of return may be contractually imposed on the consumer if the price of the goods to be returned does not exceed an amount of 40 euros or if, in the case of a higher price, the consumer has not yet provided the consideration or a partial payment at the time of withdrawal, unless the goods delivered do not correspond to those ordered."

Consequently, a contractual agreement must be provided within the scope of the offer text, the product description or the General Terms and Conditions (AGB) which meets these requirements. In the case decided by the Higher Regional Court (OLG Brandenburg), this was indeed (substantially) the case. However, the restriction to the "regular" costs of return was missing. According to the court's view, this is intended to clarify that the consumer is not required to bear all costs, but only the ordinary, typical and, depending on the circumstances of the case, expected costs. The absence of this restriction is, according to §§ 8 Abs. 1, 3 Nr. 1; 4 Nr. 11 UWG i.V.m. § 357 Abs. 2 S. 3 BGB, contrary to competition law and gives rise to a claim for an injunction.

The defendant's indeed well-founded objection that the model withdrawal information likewise does not contain such a restriction was met by the court with only barely comprehensible reasoning, namely that correct information is better than none, or that the withdrawal information formulated according to the legislature's conception is nevertheless suitable to warn the consumer sufficiently of the cost obligation. However, it remains unclear what a corresponding formulation in the – REGULARLY not read – general terms and conditions changes in this regard. In practice, the seller will namely try to convince the buyer in the event of withdrawal, on the basis of the withdrawal information, that the return costs "regularly", and thus also in his case, are to be borne by him.

Whether the decision of the Higher Regional Court (OLG Brandenburg) actually serves the protection of "elementary consumer rights" may at least be doubted. Similarly, whether the other higher courts will follow this example.