Federal Court of Justice, 3 November 2010, Ref.: VIII ZR 337/09
In principle, the consumer must pay compensation for any deterioration caused by the intended use of the item in accordance with Section 357 (3) sentence 1 BGB if he was informed of this legal consequence and the possibility of avoiding it in text form at the latest when the contract was concluded.
Facts of the Case:
The plaintiff (buyer) concluded a purchase contract with the defendant (seller) for a waterbed at a price of €1,265.
The defendant's offer was sent to the plaintiff by email as an attached PDF file. This PDF contained a cancellation policy with the following content: "With regard to the above-mentioned cancellation policy, we would also like to point out that filling the mattress of the waterbed regularly results in a deterioration, as the bed can no longer be sold as new." After delivery, the buyer set up the waterbed and filled the mattress with water.
After filling the waterbed, the plaintiff exercised his right of cancellation
Instead of the full purchase price, the seller only refunded an amount of €258 and claimed that only the heater sold with the bed could be sold, but not the bed itself. The buyer then sued the seller for reimbursement of the full purchase price. The local court upheld the claim for repayment of the remaining purchase price of € 1,007. The regional court dismissed the seller's appeal. The seller then lodged an appeal.
Decision of the BGH
Buyer can demand a full refund of the purchase price
The buyer can demand the full purchase price back despite the possible loss in value, as he has only inspected the goods. Although according to § 357 para. 3 sentence 1 BGB, the deterioration of the sold item is generally to be compensated by the buyer if the seller has given proper notice, this is not the case if the deterioration is exclusively due to the inspection of the item.
In the case of an Internet purchase, the buyer must have the opportunity to try out the goods
According to the Distance Selling Directive (Art. 6 of Directive 97/7/EC) and the German regulation implementing it, the consumer should in principle have the opportunity to inspect and try out the goods purchased by concluding a distance selling contract because he was unable to see the goods before concluding the contract. This includes putting the goods into use insofar as this is necessary for testing purposes, even if it leads to a reduction in the value of the goods.
Source: Federal Court of Justice
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