Withdrawal instruction after eBay auction close – timely?

The Higher Regional Court (OLG) Hamm had to decide the legal question whether the transmission of the withdrawal instruction immediately following the auction close on the Internet platform eBay by the merchant is still timely to trigger the 14-day withdrawal period in the consumer contract.

The parties are competing jewellery merchants who sell their goods on eBay.

One of the jewellery sellers had a test customer purchase a ring from the competitor at auction in order to check his market behaviour. This test customer received a withdrawal instruction from the mail-order merchant after the end of the auction by email, which provided for a 14-day withdrawal period.

The competitor considered this transmission to be contrary to competition law, sent a cease and desist letter to his rival and demanded cessation of this business practice. The first instance court rejected this.

Court decision

In its judgment of 10.1.2012 – Az. I -4 U 145/11, the Higher Regional Court (OLG) Hamm confirmed the first instance judgment. The reduction of the withdrawal period from one month to 14 days in a distance contract requires the prompt transmission of the withdrawal instruction, with case law applying a timeframe of 24 hours after the conclusion of the contract.

The withdrawal instruction transmitted to the buyer immediately following the end of the auction by email is timely, since earlier action is factually not possible for the entrepreneur and is also not reasonable. The seller only becomes aware of the buyer's identity after the conclusion of the auction, so that the instruction cannot be transmitted beforehand.

This also applies if the contract was already concluded more than 49 hours previously by the submission of the highest bid, since the seller must be permitted to wait for the end of the auction in order to inform the final buyer of his right of withdrawal.

Conclusion

The period for the transmission of the withdrawal instruction begins at the conclusion of the contract and ends one day after this point in time, whereby the period in the case of Internet auctions on eBay begins only with the end of the auction. This period should in any case be observed in order to achieve the effectiveness of the instruction and to avoid being subject to competition law cease and desist letters from competitors.