13 Feb 2018 | Unfair Competition

BGH on Internet test purchases

Until now, whoever ran a B2B shop had to meet stringent requirements in order to not be required to meet all consumer protection regulations. The German Federal Court of Justice (BGH) has now allowed for a simple confirmation of the entrepreneur’s property. This is a significant change of direction in German federal case law (BGH, judgment of May 11, 2017, file no. I ZR 60/16 – Test internet purchase).

The German Federal Court of Justice (BGH) recently made a very noteworthy decision on test internet purchases and the admissibility of consumer sale exclusions by simple terms and conditions. The decision is, at least in part, in contradiction with earlier decisions of German court of appeals, e.g. of the Higher Regional Court of Hamm (judgment of February 28, 2008, file no. 4 U 196/07).

Facts underlying the decision

The parties both trade accessories for machine tools and office equipment. The defendant had signed two cease and desist declarations with an obligation not to sell its products by mail order to consumers within the meaning of section 13 of the German Civil Code (BGB), unless the defendant complied with German consumer rights regulations such as information about revocation and return rights, as well as delivery and shipping costs. As a result, the defendant changed its online shop so that on each page the following remark was added: “Sale only to entrepreneurs, traders, freelancers and public institutions. No sale to consumers in the sense of section 13 BGB (German Civil Code)”.

Within the framework of the order process, the following text was placed near the order button: “I hereby confirm that I have accepted the order as an entrepreneur and not as a consumer in the sense meaning of section 13 BGB (German Civil Code) and have taken note of the general terms and conditions.”

On behalf of the plaintiff, a lawyer conducted a test purchase, by replacing the field “company” with “private” in the order data and using an e-mail address which included his first and last name. The order of the test buyer was then immediately confirmed.

The plaintiff claimed a sale to a consumer had taken place without the consumer being informed of his consumer rights and thus an infringement of the injunction signed by the defendant. As a result, the plaintiff made a claim for a contractual penalty in the amount of EUR 17.500.

The lower courts rejected this complaint. On the grounds of the above, the OLG Brandenburg stated that the lawyer commissioned by the plaintiff to buy the test was certainly not a consumer and therefore did not infringe the declaration of omission.

A lawyer who concludes a test purchase is not a consumer

The BGH initially confirmed this view.

“The Court of Appeals accepted the Court’s assessment that the objective of acquiring the envelopes in the defendant’s online shop was to verify, on behalf of the plaintiff, compliance with the obligations of the defendant in the declarations of the injunction of 19 and 28 September 2012.

The plaintiff had ordered the test sale by a lawyer. If a lawyer makes such a test purchase, the business is attributable to his professional sphere.”

A textual reference to a pure B2B shop is sufficient

The surprise of the BGH judgement comes afterwards. Previously the jurisprudence firmly affirmed that a textual reference to a pure B2B shop was not sufficient to exclude the application of consumer protection rules, so online retailers had to control and ensure that only commercial customers could order products in their shops. Former judgements of lower courts have repeatedly confirmed these requirements, e.g. the aforementioned decision of the OLG Hamm has demanded such a check. In the defendant’s shop every single website made reference to the exclusive sale to commercial customers only. Following the BGH argumentation, these references seem to be sufficient.

As an excerpt from the BGH judgement highlights:

“According to the findings of the Court of Appeals, the test purchaser has ignored the clear indication that the sale is only available to entrepreneurs, traders, freelancers and public institutions, not to consumers within the meaning of section 13 of the German Civil Code.

In addition, by triggering the order note he has confirmed that he is acting as an entrepreneur rather than as a consumer within the meaning of section 13 BGB (German Civil Code).

The test purchaser thus first produced the appearance of a commercial purpose in accordance with the objective situation and then entered the word ‘private’ in company name field of the order form, to change his commercial purpose to a private intention in a deliberate contradiction to his previous behavior.

Under those circumstances, the plaintiff cannot rely on the action of its lawyer as a test buyer. According to the jurisprudence of the Federal Court of Justice, anyone who wants to buy a product from an entrepreneur who is not willing to conclude a purchase with a consumer, cannot obtain consumer protection rights by untruthfully pretending to be a commercial customer.

If the contractual partner of an entrepreneur acts dishonestly in this respect, the later appeal to the fact that he is actually a consumer is denied to him in good faith. This legal concept also applies to a case in which the defendant’s test buyer confirms the defendant’s commercial activity in order to subsequently create, in contradiction, the appearance of a consumer business. […]

The lawyer as a test buyer has ignored the fact that the sale is only available to entrepreneurs, traders, freelancers and public institutions, and he has also expressly confirmed that he is carrying out the order as an entrepreneur.

The indication of an e-mail address denominated in first and last names is not a hint against a professional or a commercial purpose of an order. […] The fact that the defendant carried out the order under these circumstances, despite contradictory information from the purchaser, does not, however, prevent it from claiming that this test purchase does not constitute an infringement of its obligations to act.”

Recommendations

The decision of the BGH makes it easier for numerous online merchants to restrict their shop to commercial customers. If one only wants to deal with commercial customers, one should:

  • displays this on each page in the web shop, and
  • have the customer affirm that the customer is a commercial customer by means of a checkbox in near proximity to the order button.

But, of course, the notification cannot be inserted to deliberately circumvent consumer protection regulations. In the future, there will certainly be delimitations. It also depends on whether the products offered in the shop are typically used by traders or by consumers.

In the end, however, to say it in the words of Mark Twain: “The man who does not read has no advantage over the man who cannot read.”

Conclusion

In sum, if an online retailer frequently points out to his customers that he concludes contracts with only commercial customers and a customer confirms his commercial purpose, then someone who is not a commercial customer placing an order without circumventing these requirements loses his protection rights.