Withdrawal from the remote agreement irrespective of a consumer’s motives
The German BGH confirmed that a consumer has the statutory right to withdraw from the agreement concluded outside the premises of an enterprise irrespective of what are the real motives for exercising this right.
The Plaintiff ordered mattresses from the Defendant’s internet shop. The goods were delivered and paid for. On account of the fact that the Defendant guaranteed the lowest price in the market, already after the goods were purchased the Plaintiff called on the Defendant to refund the amount of EUR 32.08 since he found a more favourable offer with competitors. But the parties did not reach an agreement and for that reason the Plaintiff withdrew from the contract and sent the mattresses back to the Defendant.
The Defendant found the Plaintiff’s behaviour to be an abuse of right and noted that withdrawal from the agreement had not been effective since the Plaintiff had tried to assert an unjustified claim under “guarantee of the lowest price” while the right to withdraw from an agreement in distance selling is aimed at controlling quality of goods and conformity thereof with the agreement.
The Plaintiff’s right to demand the difference in price between the goods of the Defendant and the most favourable offer in the market has been confirmed by courts of all instances. BGH also acceded to the Plaintiff’s demand and stated that he effectively withdrew from the sales agreement concluded with the Defendant. For a withdrawal from an agreement to be effective no justification is required and it is not important for what reasons a consumer is exercising his/her right. Limitation of the consumers right due to the abuse thereof would be possible in exceptional cases only, e.g. in case of treacherous conduct of a consumer aimed at doing damage to a seller or persecuting him.
BGH found that here the abovementioned conditions had not been met because a consumer’s comparing prices of goods in the market and calling on a seller to cover the difference in price on pain of withdrawal from the agreement does not represent the abuse of right. It is only the result of an unlimited right conferred on consumers to withdraw from an agreement and competition in the market which enables a consumer to benefit on this account.
- judgment of the Federal Court of Justice of 16th March 2016, file ref No. VIII ZR 146/15