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Online retailers should not exclude the cession of claims for defects in general terms and conditions

Online retailers should not exclude the cession of claims for defects in general terms and conditions

Facts
Two commercial internet traders were parties to a dispute upon which a decision was taken in October 2015 by OLG Hamm. The defendant company operates in such market sectors as commercial electrical and electronic equipment, coffee machines, refrigerators, and washing machines. It utilises general terms and conditions that include such clauses as the following: ‘The cession of claims for defects is ruled out.’
Therefore, if one party (first buyer) buys, for example, a coffee machine from the defendant and sells it (or gives it away) to a third party (second buyer) within the warranty period, the first buyer is forbidden to cede his claims for defects vis-à-vis the defendant to the second buyer. If later on the second buyer wishes to enforce claims for defects, he must do this via the first buyer.
The claimant ruled this clause inadmissible with respect to consumer transactions and demanded that the defendant, in the context of interim relief, cease the use of the clause in relation to consumers. The defendant appeals to the fact that articles acquired online are, as a rule, intended for the personal use of the buyer and that the defendant has a justified interest in preventing a “grey market” commercial reseller and having clarity as to which party can enforce claims for defects against the defendant.

Decision
The OLG upheld the cease and desist request of the claimant and decided that the clause ‘The cession of claims for defects is ruled out’ in general terms and conditions is unauthorised during internet transactions vis-à-vis consumers since it results in a disproportionate prejudice to the private buyer. Through the ban on cession, resale by the consumer is prevented, because it makes it more difficult to fulfil the guarantee vis-à-vis the commercial first buyer. In addition to compromising the second buyer, it also compromises the reselling private first buyer.
The Federal High Court already confirmed the principle in a decision of 2012, according to which a general terms and conditions ban is ineffective if a valid interest of the user does not exist or if the justified interests of the customer in the transferability of contractual claims outweigh the countering interests of the user. This principle was applicable in the present procedure.

Commercial first buyer must bear the risk of confrontation with unknown warranty creditors
The interest of the commercial first buyer in using a ban on cession to counter the threat that third parties entirely unknown to him may be forced to act as warranty creditors does not outweigh the buyer’s interests in dealings with consumers, says the OLG Hamm. Warranty liability is not extended in these cases, but only shifted. In internet mail order dealings with the consumer, generally speaking the mail order companies are not personally known to their contractual partners, but only known by name.

Bans on cession vis-à-vis commercial resellers continue to be authorised
In cases in which business transactions between companies were concerned, the Supreme Court and other courts have already ruled repeated times that a provision contained in general terms and conditions with which the user excludes the cession of claims against him is basically legally effective. In business transactions, it is recognised that there is a recognisable interest in keeping the contractual relationships clear and concise. The fact that claims from companies are often ceded on grounds of security to lenders also plays a role here. The commercial resale of claims, in particular, for example in collection companies, can compromise the clear and concise nature of contracts in this way.

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