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Created on Monday, 14 January 2013 15:07

Last Updated on Monday, 14 January 2013 15:07

Unfair Competition when Vendor Wiggles around Accepting your Sale

Do you think a vendor can accept the purchase per STC at the time the client actually pays and get away with it? The OLG Frankfurt answered this question on August 29, 2012 (re 6 W 84/12).

A sales guy once had a stipulation that when choosing advance payment that he declares he will accept the contract if the purchaser pays within 10 days.

This court held that such stipulation is invalid pursuant to §§307, 308 no. 1 BGB. Such agreement is unclear and incomprehensible and therefore null and void. It cannot be that a contractual partner says in general or at any time, if and when he will accept the consumer’s request to purchase. Such ambiguity violates general principles of the law on contracts.

The vendor defended his clause that it clearly refers to the time when the purchaser makes his payment. The court did not follow this argumentation. The time when payment is received is exclusively inside the vendor’s sphere and the purchaser therefore has no influence on the duration of his offer to purchase.

Finally, the court held that such illegal stipulation constitutes a violation of §4 no. 11 UWG. Such violation entitles a competitor to demand cease and forebear and damages.