Right of withdrawal at eBay is regularly one month

Surprising news is to be heard from the Regional Court (LG) Dortmund: according to an order dated 07.04.2011 (20 O 19/11), the court is of the opinion that the circumstances of contract conclusion in eBay offers would regularly result in the right of withdrawal being not 14 days but one month even after the most recent legislative amendment. Since this is a summary decision without reasons, the exact grounds for this remain unclear.

In the case to be decided, the applicant in its application seeking an injunction has taken the view that contract conclusion in eBay auctions (not immediate purchase offers!) takes place directly upon submission of the (later) highest bid. This bid – and not the later expiry of time – constitutes the legal acceptance of the seller's offer and therefore directly results in contract conclusion. Since the auction in question expired 49 hours later, the notification sent in text form subsequently was no longer 'immediately' within the meaning of § 355 Abs. 2 S. 2 BGB. For this reason, the right of withdrawal is one month.

The court followed this view and considered the information provided by the commercial seller with a 14-day right of withdrawal to be unfair competition and accordingly obliged the defendant to refrain from such conduct.

An inevitable consequence of this legal interpretation is that a duty to pay damages for proper use of the purchased item by the buyer is also ruled out from the outset. This, too, depends on the buyer being notified in text form of this obligation immediately after contract conclusion. A corresponding notification would likewise be at risk of a cease-and-desist letter.

Whether this case law will prevail is currently completely open, not least because numerous indications exist that this view was neither intended nor codified by the legislature. In the event of a cease-and-desist letter, in any case it is advisable to consult a specialized attorney, who examines the special circumstances of the individual case and takes appropriate steps.