BGH NJW 2002, 363 VIII. Civil Senate (VIII ZR 13/01)
07 November 2001
Translated by:
Raymond Youngs
Professor Basil Markesinis

The parties are in dispute about whether they concluded a valid contract for the sale of a car in July 1999 in an internet auction.The r. .de AG in H (from now on called r. .de) carried out online auctions on its website under the description "r. private auctions", in which the only people who could participate as sellers or buyers were those who had registered beforehand with r. .de, and had thereby approved the "general conditions of contract for r. .de sale events" (from now on called the AGB). The following are extracts from the AGB:


(3) § 156 of the BGB, § 34 b of the GewO (Trade Order) and the Regulations about Business Auctions do not apply to ... private auctions.

§ 3 Description of the subject-matter of the purchase, offer of sale in private auctions
(1) R. .de enables participants to present to the public on offer pages objects in their ownership which are to be sold under the umbrella of private auctions.
(5) The participant who wants to sell is invited, as part of the process of the release of the offer page, to give the assurances and declarations mentioned in para 4 and § 5 para 4 to r. .de. R. .de acts in this connection as receiving agent for all other participants: § 164 (3) of the BGB. The release only takes place when the participant who wants to sell has given the required assurances and declarations.

§ 4 Contractual offer

(1) For objects offered under the umbrella of private auctions by .... participants who want to sell, any participant (with the exception of the group of persons mentioned in para 2) can give a binding offer to purchase via the r. .de website during the offer period for the object in question (§ 6).

(4) Offers of purchase which are below the reserve price asked by ... the participant who wants to sell are invalid.

(7) In the case of offers which are given under the umbrella of private auctions, r. .de acts as receiving agent for the participant who wants to sell: § 164 (5) of the BGB.

§ 5 Acceptance of a contractual offer

(4) In the case of private auctions, the participant who wants to sell declares, by the release of his offer page in accordance with § 3 para 5, his acceptance of the highest offer of purchase effectively given, taking into consideration § 4 paras 4 and 5. The participant who is selling will be informed by r. .de immediately when the contract of sale comes into existence, but at the latest before midnight on the second working day after the end of the offer period (§ 6) by email at the email address given by the participant who is selling.

The defendant, who deals in EU reimported vehicles as a sideline, set up an offer page under his user name for the sale of a new VW Passat with a description of the vehicle. He stipulated the starting price (10 DM), the spaces between the bids, and the length of the auction. He gave the prescribed declaration which said, amongst other things: "At this point in time I declare my acceptance of the highest offer of purchase effectively given". The defendant did not stipulate a reserve price. The offer page was released for five days on the website of r. .de.

The claimant made the last and highest bid of 26,350 DM under his user name eight seconds before the end of the auction. R. .de told the claimant by email that his bid was successful, informed him of the identity of the seller, and invited him to get in touch with the seller in order to arrange dispatch and payment.

The defendant refused to deliver the car to the claimant's order, on the ground that no contract had yet come into existence. He was however prepared to sell the vehicle at a price of "about 39,000 DM". As a precaution, he denied, on the ground of a mistake in the submission of the starting price, that he had made any declaration of will.

The claimant claimed from the defendant transfer of the car simultaneously with the payment of 26,350 DM. The Landgericht rejected the claim (LG Münster JZ 2000, 730). On the claimant's appeal, the Oberlandesgericht gave judgment against the defendant in accordance with the application (OLG Hamm JZ 2001, 764 = NJW 2001, 1142). By his appeal in law, which has been admitted by the appeal court, the defendant seeks the restoration of the judgment of the Landgericht.



II. The appeal in law was unsuccessful. The parties have concluded a valid contract of sale in respect of the car offered by the defendant on the website of r. .de.

1. Contracts come into existence by declarations of will which correspond with one another and which envisage conclusion of a contract. As a rule they are an offer and an acceptance under §§ 145 ff of the BGB. In the case of auctions they are a bid and an acceptance (§ 156 of the BGB). These declarations of will can, as the appeal court has correctly stated, also be given and become effective by electronic communication of a file on the internet - online.

2. Conclusion of a contract under § 156 of the BGB is excluded in this case, because no acceptance has occurred of the claimant's bid. (...)

3. A contract has however come into existence under the general provisions of §§ 145 ff of the BGB.

a) It is beyond doubt that the claimant's highest offer, given online, represents an effective declaration of will envisaging the conclusion of a contract of sale with the defendant. Contrary to the view of the appeal in law, there is also a corresponding declaration of will on the part of the defendant. According to the deliberations of the appeal court, which are correct, this lies in the fact that the defendant released the offer page set up by him for the auction of his car with the (express) declaration that he would at that point in time accept the highest offer of purchase effectively given.

Whether the defendant's declaration of will is, as the appeal court thought, legally to be classified as an offer of sale, and the subsequent highest bid of the claimant as its acceptance, or whether, as the wording of the declaration given by the defendant suggests (and this was accepted as a subsidiary point by the appeal court), the defendant's declaration of will represents a - legally permissible - acceptance declared beforehand of the highest bid which was given by the claimant can remain undecided. It has no significance for the legal consequences.

The reciprocal declarations of the parties have, according to the findings of the appeal court which are not challenged, in each case reached r. .de as the receiving agent of the parties (§ 164 (3) of the BGB) and therefore become effective (§ 130 (1) sentence 1 of the BGB). A contract of sale has thereby come into existence between the parties under §§ 145 ff of the BGB.

b) The appeal court correctly assumes that the declaration given by the defendant, combined with the release of his offer page which was effected simultaneously, represents a declaration of will envisaging sale of the car which was on offer, and was not merely a non-binding invitation to treat (invitatio ad offerendum).
aa) A declaration of will is a statement which envisages the effectuation of a legal transaction (see BGH judgment of the 24th May 1993 - II ZR 73/92, NJW 1993, 2100 under I 1). Whether a statement or a piece of conclusive behaviour is to be understood as a declaration of will needs interpretation.

The appeal court, in assessing the effect on the claimant of the defendant's release of his offer page, was correct in not only taking account of the content of the offer page, which in online auctions appears on the screen. The court also considered the declaration which the defendant had to give on the release in order to effect the release (§§ 3 para 5, and 5 para 4 of the AGB), and which the defendant also actually gave by clicking on the appropriate preformulated declaration at the time of the release. This express declaration by the defendant, which admittedly did not itself appear on the offer page, but which reached r. .de as the claimant's receiving agent, represented, combined with the content of the offer page to which it referred, the defendant's declaration envisaging the conclusion of a contract of sale with the highest bidder.

The appeal in law objects that the appeal court had disregarded the unambiguous wording of the declaration given by the defendant on the release in an impermissible way. This only relates to the question - not significant for the decision - of whether the defendant's declaration of will should be classified as an offer or as an anticipated acceptance. It does not however affect its character as a declaration of will leading to a legal transaction.

bb) The defendant's declaration of will was also, as the appeal court has correctly explained, sufficiently precise. Admittedly it was not directed at a person described in concrete terms (ad incertam personam). But it satisfied the requirement of precision, because the auction participant with whom the defendant wanted to contract could be identified without doubt ie (only) the person who gave the highest offer within the offer period laid down (references omitted).

cc) It is not necessary, as the appeal court thought, to refer to § 5 para 4 of the AGB in order to understand the defendant's declaration given on the release. It is true that general conditions of contract for internet auction can be called on as a basis for interpretation if declarations by the auctions participants are not comprehensible in themselves. Gaps in understanding can then be closed by referring to the mutual expectations of the auction participants, based on approval of the general conditions of contract and their common understanding of the way online auctions operate. The defendant's declaration given separately on the release ("At this point in time I declare my acceptance of the highest offer of purchase effectively given") however makes the defendant's intention to be bound unmistakably plain from its own terms, without any need to refer to the corresponding provision - worded in the same way - in § 5 para 4 of the AGB for an understanding of this declaration.

dd) It does not matter whether the defendant was aware of the binding nature of his declaration when he gave his declaration of will and released his offer page. Even if there is no consciousness of making a declaration (an intention to be legally bound or to enter into a transaction), a declaration of will is present if the declarant - like the defendant - could, on applying the care necessary in human affairs, have realised that, in accordance with the principle of good faith and business custom, his statement might be regarded as a declaration of will, and if he could have avoided this result (BGHZ 91, 324; BGHZ 109, 171, 177). Reservation of an intention not to be bound which the recipient could not recognise should be ignored (§ 116 of the BGB). All that remains for the declarant is the possibility of avoiding his declaration of will under §§ 119 ff of the BGB within the limits set out there.

4. There are no grounds for saying that the defendant's declaration of will (and therefore the contract of sale) is ineffective. In particular such grounds do not arise, as the appeal in law claims, from the AGBG (General Conditions of Contract Act) [§§ 305-310 of the BGB]. (...)

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