After the first instance was not successful for the plaintiff, the Higher Regional Court (OLG) confirmed the view of the Regional Court in a note to the plaintiff as follows:
Note decision according to § 522 para. 2 p. 2 ZPO:
In the matter of
(...)
the 5th Civil Senate of the Higher Regional Court of Koblenz, represented by the Presiding Judge at the Higher Regional Court Kaltenbach, as well as the Judges at the Higher Regional Court Dr. Menzel and Goebel,
unanimously decided on June 3, 2009:
- The parties are advised that the court intends to dismiss the appeal by order pursuant to § 522 (2) sentence 1 ZPO.
- The parties are given the opportunity to comment on the court's notice by June 25, 2009.
Reasons
The appeal has no prospect of success for the reasons set out below. A decision by the court of appeal pursuant to Section 522 (2) sentence 1 nos. 2 and 3 ZPO is not required.
The District Court is correct in assuming that the plaintiff's claim for damages is precluded by the objection of impermissible exercise of rights under § 242 BGB. To avoid repetition, reference can be made to the contested decision. The arguments of the appeal directed against it are not convincing.
1.
The District Court correctly assumes that a purchase agreement was concluded between the plaintiff and the defendant and that the defendant is liable to the plaintiff for damages.
The defendant's view that a contract is only concluded if the originally planned bidding time, in this case 10 days, has expired, is not shared by the court. In this case, the bidder would be at the mercy of the provider's arbitrariness, who could then cancel the auction at any time before the bidding period expired without any adverse legal consequences. It is irrelevant when the vendor cancels the auction, because it would also be arbitrary to allow cancellation at very short notice because the vendor has received an offer that appears attractive to him outside of the internet platform.
The defendant could only withdraw from his bid by canceling the auction if he had a reason to do so.
No such reason for rescission has been substantiated. The defendant merely states in this regard that he had contested the contract as a precaution due to a mistake in declaration in a letter dated September 15, 2008 (p. 15 of the case file). What this error of declaration was supposed to have been is not explained. The letter of September 15, 2008 (Appendix K6) also does not contain any justification in this regard. The defendant's intention to upload more than five images, namely seven, and to "allow the images to be enlarged" does not constitute an error of explanation. Assuming that the contract was validly concluded, the plaintiff's breach of duty and the resulting claim for damages are not seriously in doubt.
2.
The court is able to endorse the opinion of the district court that the insistence on the execution of the contract and the resulting assertion of a claim for damages in this specific individual case is an abuse of rights in the sense of § 242 BGB.
The defense of abuse of rights is a recognized case group of § 242 BGB in case law and legal literature, which the courts are required to consider ex officio (BGHZ 12,164 ff.; OLG Munich v. November 15, 2002 -19 W 2631/02 - Online-Ticket). The plaintiff does not dispute this either. It is in the nature of things that this is accompanied by questions of evaluation, which in turn can lead to legal uncertainty. Therefore, its application must be limited to exceptional cases. Such an exceptional case exists here.
In principle, the assumption of unreasonable disadvantage to the offeror and seller can only be considered in blatant exceptional cases. The provider is generally able to limit his risk by specifying a minimum bid, the size of the bidding increments and the bidding time. If he does not use this, he must accept the consequences in principle. However, this can only apply without restriction if the auction was actually carried out until the end of the bidding time and the bidder has used the chances of a low starting price to this extent and must therefore also bear the risks. This constellation, which differs from the present one, was the basis for the decision of the Higher Regional Court of Cologne of December 8, 2006 (19 U 109/06 = OLGR Cologne 2007,565 = MMR 2007,446 = CR 2007,598).
However, if the auction was terminated prematurely, the specific individual case must be considered. In this context, it is of particular importance whether the main reason for the provider to maintain his offer in order not to expose the bidder to arbitrariness is realized in the specific individual case. This is not the case here.
Regardless of how many minutes had passed before the defendant canceled the auction, it was certainly a short period of time. It is therefore far-fetched that the defendant wanted to avoid the plaintiff's bid. The Senate is therefore unable to discern any arbitrary action on the part of the defendant in the face of the plaintiff's particular need for protection. Nor is it apparent that it would have been possible for the defendant to abort the auction before a bid had been made. Ultimately, the defendant did not have the option, due to the provision in § 10 no. 6 of the terms and conditions, to place his own bids under a different name or to involve a third party to counteract the disadvantageous consequence, from his point of view, of an insufficient number of images that could not be enlarged. The only thing arguing for the plaintiff is that the defendant could have given the plaintiff a hint in this time frame that he had canceled the auction and simultaneously restarted it (Appendix K 9 = BI. 29 GA), so that the option of placing a new bid would have been opened to himThis alone, however, does not remove the objection of Section 2428GB.
It cannot seriously be disputed and is assumed to be known to the court that a purchase price of EUR 5.50, with a value of the vehicle of at least EUR 75,005.50 as stated by the plaintiff himself, is no longer in the range of a "bargain", i.e. a particularly favorable price that is still within the expected range. Rather, there is only an extreme disparity between the price offered and the value of the item. This is readily comprehensible to any reasonable observer. It is also uncontested and ultimately proven by the documents submitted by the plaintiff himself that, if the auction had been carried outexecution of the auction over the entire bidding time, the proceeds would have been far in excess of the plaintiff's highest bid of EUR 5.50 and also his maximum bid of EUR 1,100.00. Contrary to the plaintiff's assertions, this is not a hypothetical assumption. Rather, the defendant immediately relisted the vehicle and 10 days later realized proceeds of EUR 73,450.00. The plaintiff itself submitted the result of this auction as Exhibit K 9 (p. 29 GA).
Another consideration also leads to the same result: If the defendant had stated a price of EUR 5.50 for the purchased item, which was worth around EUR 75,000, on an internet portal, there would be no serious doubt that he could have challenged this declaration on the grounds of a declaration error, a mistake in the declaration that would undoubtedly have been obvious (see, in a similar case, OLG Stuttgart v. 10.08.2006 - 12 U 91/06 = OLGR 2007, 360)
The cited decision of the Higher Regional Court of Cologne dated December 8, 2006 does not contradict the above assessment. It involves a different case constellation. In this case, the provider was made aware of his error in the offer before a bid was submitted. Nevertheless, he did nothing. The Higher Regional Court of Cologne specifically criticized the defendant there for not canceling the auction early. The decision of the Berlin District Court of April 16, 2004 (36 0 488/03) does not contradict this, since it deals with a different case, namely a buy-it-now price. The decision of the Regional Court of Bonn of November 12, 2004 (1 0 307/04), cited in the appeal, also does not conflict with the present indications. The statements cited in the appeal were not made in connection with Section 242 of the German Civil Code, which is not dealt with in this decision, but with regard to the question of whether the assumed
purchase agreement is immoral according to § 138 BGB. This question is not at issue here.
3.
According to the above statements, the appeal offers no sufficient prospect of success. A decision of the court of appeal is not necessary in the opinion of the Senate, taking into account the reasons stated in § 522 para. 2 p. 1 no. 2 and 3 ZPO. The category of abuse of rights is sufficiently clarified in relation to § 242 BGB in the supreme court jurisdiction. The application of these principles to the present case does not establish any fundamental legal significance. The parties apparently also assume this, since they did not request in the first instance that the matter be transferred from the single judge to the chamber on the grounds of fundamental importance. As explained, there is no divergence from other decisions, since these were based on different case constellations.
In view of this, the court intends to dismiss the appeal as unfounded by unanimous decision in accordance with § 522 (2) sentence 1 ZPO. Before doing so, the parties will be given the opportunity to comment on the above statements by June 25, 2009, and to draw procedural consequences from the note, if necessary, from a cost perspective.
Withdrawal of the appeal
The plaintiff's side then withdrew the appeal. In its decision of June 25, 2009, the Higher Regional Court stated that this resulted in the loss of the right to appeal. The decision is therefore legally binding.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.