IN THE NAME OF THE PEOPLE
Verdict
In the matter of
..
the 10th Civil Chamber of the Regional Court of Koblenz, by... as sole judge, in consequence of the oral proceedings of March 18, 2009, hereby rules:
1. The action is dismissed.
2. The plaintiff shall bear the costs of the legal dispute.
3. The judgment is provisionally enforceable upon provision of security in the amount of 110% of the amount to be enforced.
Facts of the case:
The parties are in dispute regarding the effectiveness of a sales contract concluded on the trading platform of eBay, an Internet auction house. The dispute is based on the following facts:
On August 12, 2008, the defendant placed an ad under his eBay member name "..." on the aforementioned trading platform for the vehicle in dispute, a Porsche 911/997 Carrera 2S Coupe with accessories. The vehicle, first registered on April 16, 2007, had a mileage of 5,800 km at that time. The minimum bid was set at 1.00 euro.
At 17:07:53, the plaintiff, under his eBay member name "...", offered an amount of 5.00 euros for the vehicle.
At 5:08:54 p.m., the defendant ended his auction early without stating reasons by filling out and submitting the form provided by eBay "for the early termination of offers". At that point in time, the plaintiff was the highest bidder with a bid of €5.50. His maximum bid was €1,100. As a result of the termination of the auction, the bids submitted by the plaintiff and other bidders at that point in time were canceled. The auction lasted for a period of eight minutes.
Section 10(1) of the eBay terms and conditions states, inter alia, that
[...] At the end of the auction or [...] in the event of premature termination of the offer by the provider, a contract for the purchase of the item is concluded between the provider and the highest bidder, unless the provider was legally entitled to withdraw the offer and to delete the existing bids. [...]"
By email dated August 12, 2008, the plaintiff requested that the defendant inform him when and where he could pick up the vehicle in dispute, setting a deadline of two weeks. The plaintiff expressly offered to transfer the bid amount of 5.0 euros to an account to be named by the defendant. The defendant did not respond to this letter.
In a letter dated September 15, 2008, the defendant stated in writing that a purchase agreement had not been concluded. As a precaution, he declared the contesting of a possible purchase agreement.
The plaintiff argues that by placing the Porsche 911/997 Carrera 2S Coupe on the eBay auction website, the defendant made an offer to purchase the vehicle, which the plaintiff accepted as the highest bidder. The premature termination does not lead to an effective revocation of this offer. The vehicle had a market value of at least €75,005.50.
The plaintiff moves:
Order the defendant to pay to the plaintiff 75,000 euros plus interest thereon in the amount of 5 percentage points above the base interest rate since November 17, 2008, as well as pre-trial legal costs in the amount of 1,880.20 euros to him.
The defendant moves:
dismiss the action.
The defendant argues that no valid purchase agreement was concluded between the parties. The plaintiff did not receive any message from eBay informing him that he had won the auction. Furthermore, the plaintiff is not entitled to protection in the present case due to the immediate termination of the auction after only 8 minutes.
Reasons for the decision
The admissible action is unfounded.
The defendant is not legally obliged to pay damages and reimburse the plaintiff for pre-trial legal costs.
Although an effective purchase agreement has been concluded between the parties in the present case, the plaintiff's claim for damages due to non-fulfilment of the purchase agreement concluded between the parties (Section 280 I, 281 I, II BGB) has arisen, enforceability is, however, contrary to Section 242 BGB.
The parties have concluded an effective purchase contract in accordance with § 433 I BGB.
The defendant put the vehicle up for the purpose of conducting an online auction on the eBay and Freischaltung der Angebotsseite. According to the case law of the Federal Court of Justice, this constitutes the explicit declaration that he is already accepting the highest purchase offer effectively submitted (BGHZ 149, 129 [133ff.].
The defendant did not effectively revoke this declaration of intent in accordance with Section 130 I S.2 BGB. It is true that the defendant ended the internet auction prematurely using the "form for the premature ending of offers" and canceled the offers made up to this point in time. However, the premature termination and deletion of all offers does not result in the effective revocation of his submitted offer. This is already evident from the binding nature of this offer of sale agreed between the parties via § 10 no. 1 sentence 1 of the General Terms and Conditions, which is intended to establish the irrevocability of the contractual offer. eBay's General Terms and Conditions have been bindingly recognized by the parties through their participation in the auction.
The regulation in § 10 Nr. 1 S. 1 AGB is necessary not least in view of the protection of the bidder, since otherwise he would be at the mercy of the provider. The option of withdrawing an offer before the specified end of the contract or of canceling an existing offer from a buyer, as shown in the aforementioned provision of the general terms and conditions, is merely an indication of the options for rescission provided for by the legislator in §§ 119 ff. BGB can be used to contest the contract.
A contractual claim of the plaintiff against the defendant arising from the purchase contract in conjunction with § 433 I BGB for delivery and transfer of ownership of the car make Porsche has therefore arisen in the present case. The defendant has not fulfilled this obligation arising from the purchase contract and is therefore fundamentally obliged to pay damages to the plaintiff (§§ 280, 281 Abs. I and II BGB).
Contrary to the defendant's legal opinion, the purchase contract is also not null and void from the outset due to the defendant's challenge pursuant to § 143 I BGB, § 142 I BGB. The defendant has not sufficiently argued that and to what extent he was subject to a relevant error in accordance with § 119 ff. BGB when hiring the vehicle. Furthermore, the defendant fails to recognize that he would also be liable to the plaintiff for damages in the event of an effective challenge in accordance with § 122 BGB.
Since the defendant refused to hand over the vehicle to the plaintiff in the present case, it was not necessary to set a deadline for the defendant to fulfill his obligations under the purchase agreement in accordance with Section 281 II BGB.
However, the enforceability of the claim for damages is precluded in the present case by the objection of the institution of abuse of rights derived from § 242 BGB.
According to § 242 BGB, the debtor is obliged to effect performance in such a way as good faith with due regard to custom and practice requires. According to this, among other things, the contractual partner must take into account the legitimate interests of the other party. This requirement applies not only to the debtor, but also to the creditor. However, the legal provision of § 242 BGB is not a general equity standard that allows the judge to disregard legal evaluations in order to arrive at a result that he or she considers just. Rather, the judiciary is bound by law and justice (see Art. 20 III, 97 GG). Furthermore, legal certainty would no longer be guaranteed if there were an equity rule because a judicial decision would no longer be foreseeable.
Jurisdiction and legal literature have therefore constantly endeavored to organize the individual problems arising from the application of §242 BGB and to summarize them into specific case groups in order to achieve a certain legal certainty when applying the general clause (Brox/Walter, Allgem.-Schuldrecht, 31st ed. § 7 Rdn. 1 ff).
The exercise of a right is inadmissible if the interest on which it is based does not appear worthy of protection in an individual case for special reasons (objection of inadmissible exercise of a right).Such a denial of protectability is the result of a comprehensive assessment of the interest (MüKo-Roth § 242 Rdnr. 393). Not every imbalance, not every excessive economic disadvantage for the opposing party makes an exercise of the rightexercise of a right inadmissible, but it must be an exceptional case of a grossly unfair disadvantage that cannot be reconciled with justice (BGH WM 1967, 988, 989).
This is the case here.
After such consideration, the plaintiff's interest in damages is not worthy of protection in the present case.
Although the risk of an incorrect setting of a sales offer on an auction site is generally the responsibility of the seller, and although it is undisputed that the special feature of internet auctions requires the irrevocability of the contract offers in order to avoid the bidder being exposed to the arbitrariness of the seller, Furthermore, the seller has the option of contesting the contract within the framework of the statutory provisions and is therefore sufficiently protected in principle even when participating in internet auctions.
However, a judgment for damages in the present case would lead to a disadvantage for the defendant that is incompatible with justice.
When the offer was placed, the defendant was subject to an error (which is irrelevant for Section 119 et seq. BGB in the present case). The defendant tried to correct this error immediately. Before placing a bid on the advertised vehicle, he completed the "form for the early termination of offers" and sent it to eBay. The auction was then terminated. This process took about eight minutes. In the meantime, the plaintiff had already bid on the vehicle.
An eBay auction regularly lasts up to a week. During this time, a large number of offers are made, especially for high-quality everyday items such as the vehicle in question.
In the eight minutes between the item being posted and the auction ending, two bids had already been placed on the item posted by the defendant. The plaintiff's higher bid of €5.50 was placed at this point in time. It is obvious that the plaintiff could not assume that his offer of 5.50 euros would be the highest bid for a one-year-old Porsche 911/997 Carrera 2S with a mileage of approx. 5,000 km. The plaintiff himself assumes a market value for the vehicle of at least €75,005.50.
It also appears obvious to the court that the plaintiff did not assume that he would acquire the vehicle in dispute at the end of the auction with his highest bid of €1,100.
The demand for used cars on the internet is high; new vehicles from the manufacturer Porsche that correspond to the model in question regularly reach selling prices of well over €50,000. The plaintiff's highest bid of €1,100 on the item posted by the defendant, which had a new value of more than 105,000 euros and, according to the plaintiff's own estimate, was at least 75,000 euros at the time of the auction, was apparently and evidently not enough for the plaintiff to purchase this item at the highest bid at the end of the auction.
In a market governed by supply and demand, the discrepancy between the price achieved and the value of an item cannot, in principle, lead to the enforcement of a "bargain" being considered an abuse of rights. This is particularly the case when sellers offer items for auction for which there is regularly no market. In such cases, the failure to achieve the real value of an item cannot be interpreted as an abuse of rights to the detriment of the bidder (see the sale of a beet harvester, OLG Cologne, December 8, 2006). It is then the seller's risk.
In the present case, however, there is a market for the vehicle advertised by the defendant. The court is convinced that it is out of the question that no further serious bids would have been made for the vehicle in the present case. The plaintiff could not have expected to buy the car for 1,100 euros, let alone 5.50 euros, had the defendant carried out the auction to the end.
A "bargain" for such a vehicle can still be assumed at a price of several tens of thousands of euros.
Thewould be rewarded for the fact that the defendant, in the assumption of the admissibility and the necessity of a direct remedy of the defectively or incompletely drafted offer, tried to cancel the auction as quickly as possible and before submitting any bids.
If the defendant had not ended the auction despite recognizing the error, the court is convinced that a price would have been achieved that would have been many times higher than the plaintiff's highest bid.
The plaintiff has also not been exposed to the arbitrariness of the defendant in this case.
The defendant tried to end the auction immediately after the article was posted and before placing any bids. The fact that it took a total of eight minutes to fill out the form, send it to the auction house and process it through eBay does not mean that the plaintiff was arbitrarily deprived of thewas arbitrarily deprived of the opportunity to purchase a Porsche Carrera for €5.50. This opportunity did not exist from the outset.
In the context of this consideration, the plaintiff's action for damages is to be regarded as an abuse of rights within the meaning of § 242 BGB, with the consequence that the plaintiff cannot enforce the claim for damages to which he is entitled.
The action was therefore dismissed.
The decision on costs follows from § 91 Abs. I ZPO.
The decision on the provisional enforceability has its legal basis in § 709 S.2 ZPO.
Amount in dispute: €75,000.00.
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.