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Created on Saturday, 23 January 2010 19:11

Last Updated on Friday, 28 December 2012 18:59

Legal Rules on eBay

Selling on eBay is vey popular in Germany. However, a lot of legal boundaries are not yet fully clarified and the precedences for private and professional selling are pretty confusing. This article will present you the ten most important judgments on "eBay law", which are very interesting for the pro seller as well as a private person.

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Selling privately or commercially?

This determination is vital for which set of rules is applicable for you. In contrast to private persons, businesses are not allowed to exclude warranty on any sold product. Businesses have informational duties and have to obey many rules concerning consumer protection and unfair competition, etc. OLG Celle ruled in its judgment of April 8, 2009 (re 3 U 251/08) that the seller of yacht may successfully exclude any warranty in an online auction because he clearly mentioned in his profile that he is selling the boot as a private person and does not want to be held liable for any defects.

Beware: On eBay, you cannot enjoy the privilege of fools - being uninformed! Also private persons may be admonished. It happened to a private person, wanting to sell a navigation device, that the producer admonished him because he did not have the permission to show a product picture in his offer. The producer, having the copyright of the picture, admonished him by demanding cease and forbearance as well as damages. The OLG Brandenburg (judgment of Feburary 3, 2009, re 6 U 58/08) court decided for the producer but limited the damages to € 40 and the costs for admonishing to € 100.

Criteria for a Trade or Commercial Business

The above mentioned problems are relatively easy. The biggest problem is whether your sale will be considered private or commercial. The courts have developed a vast amount of case law. One thing is for sure: just declaring yourself private is legally irrelevant and does not hinder classifying you as a business. This is what OLG Koblenz decided (July 30, 2009, re 5 U 397/08). A GmbH used a fantasy name as a nickname for the portal and described its account as private. It bought some jewelry and later wanted to return in application of consumer protection rules. The court dismissed the GmbH's case because a corporation is not a private person and can never be eligible for consumer protection.

The number of products sold can be a taken as a token of commerciality. The Federal Court of Justice affirmed in one case the commercial status of a vendor because this lady sold 91 articles from mid January to February 2004 on eBay (judgment of December 4, 2008, re I ZR 3/06).

But the number of products sold does alone not automatically define you as a business. It also depends on the individual case. LG Munich judgement of April 4, 2009, re 33 O 1936/08) showed this in one of its cases: A competitor admonished an eBay seller because he did not fulfill his duties following the BGB-InfoV as he sold his few antiques and excluded any guarantee. The judges considered his sales as commercial because selling even only a few antiques can be qualified as commercial. This is even more sure as the vendor had these pieces on stock and offered the chance to inspect them before purchasing.

Attention:

Since the law on unfair competition was redone in 2008, the statutory duties to provide information have been increased. This especially goes for the position tradesperson. Whoever hides his entrepreneurship acts illegally can be admonished by competitors. Therefore, when selling on eBay do mention that you are selling professionally.

Liability of Account Owner

Courts are being more and more confronted with the rights and duties when generally having an account at eBay. Which liabilities exist e.g. when third parties commit a crime via your account. Generally, the Federal Court of Justice determines that every account owner is responsible for all transactions made from this account. The owner has to take care that his login details are not accessible for others and so protect his or her account from misuse. In a precedence of March 11, 2009 (re I ZR 114/06), an eBay seller lost this case even though he did not know that his wife infringed the trademark rights of a big company. The BGH judges affirmed his liability because these infringements were made through his account.

The moral of the story is make sure that your login details are not accessible to other persons so that they cannot interact via your online identity. Whoever notices, that his or her name is being used without their knowledge should immediately contact eBay. The Bundesgerichtshof has the opinion that even when your identity is stolen without your fault, you are still obliged to report such to eBay - in as far as this is reasonable. However, a general duty of eBay to check accounts was not required by BGH (April 10, 2008, re: I ZR 227/05).

Blocking eBay Accounts

Following the STC of eBay, an account can be closed because of negative ratings - e.g. when the blocking of another is to be circumvented. OLG Brandenburg confirmed that such blocking terms are permissible (judgment of January 15, 2009; re 12 W 1/09).

Whoever does not meet the reliability requirements of eBay has to reckon that one's account will be closed without notice. Several negative ratings of buyers can justify a notice at due date - so the opinion of OLG Brandenburg (judgment of June 17, 2009, re Kart W 11/09).

But an account closure by eBay is not always justified. OLG Brandenburg decided on November 12, 2008 (re 6 W 183/08) that the closure of a power seller was not justified because eBay only vaguely argued with "offence of its STC". The judges sentenced eBay to immediately open the account again. The judges stuck it to the vendor because due to the closure of his account, he was losing several € 1,000 per day.

Remark

For commercial vendors and private sellers alike, negative ratings can have an aggravating financial consequence; and only on you but also on your turnover. Often not only ratings on the execution of a sale are made but also personal remarks or insults. In such cases, immediate action and quick remedy are required because it cannot be expected of the concerned person to wait until a normal case in court comes to a decision as such can easily last for a year or more. For such immediate reaction, temporary injunctions are the name of the game.

Check the business directory of LG2G for a lawyer specialized in IT law. He will weigh all incidents of any individual case from a legal perspective and inform if your case has merit or not. He will surely tell you what the wisest approach is in your case.