General Terms and Conditions Clauses for Online Shops Are Teeming with Pitfalls. In a recent ruling, Hamburg District Court has determined several clauses often encountered are anticompetitive (District Court Hamburg, decision from 10/29/2012, 315 O 422/12).
This concrete decision involved an online erotica shop that provided international shipping, declaring their shipping costs as follows: “From 6.95 EUR, depending on weight and destination country”. Indicating such insufficient and nonbinding international shipping prices is nothing new and similar decisions have already been made by other courts (e.g. Higher Regional Court Hamm, decision from 02/01/2011, I-4 U 196/10).
The German Price Indication Ordinance (PAngVO) specifically obligates vendors to indicate the “final price” for their offers and in their advertisements, i.e. the total price including all price components; corresponding delivery and shipping costs must also be indicated (Section 1 PAngV). Consequently and appropriately, the Hamburg District Court has ruled two other general terms and conditions provisions invalid, according to which (a), in cases of cash on delivery payments, an amount of 2.00 EUR must be paid to DHL in addition to the price indicated and (b), in cases of purchase on account, a processing fee of 1.07 EUR is incurred in addition to the total price indicated. In this respect, the Hamburg District Court’s decision remains within the limits of what is customary.
However, what is interesting and novel about this is the court’s dispensation of justice of the following clause: “If the customer does not receive confirmation of the order or notice of delivery of goods within 5 days, the customer’s order is no longer binding.” This clause is unacceptable because the client cannot be expected to wait for five days to find out whether their offer has been accepted. A period of merely two days is appropriate and reasonable.
The district court’s judgment should be viewed against the background of the provision in Section 147, sub-section 2 of the German Civil Code (BGB): Acceptance of an offer may only be effected in the period of time in which an answer may be expected under ordinary circumstances. With orders placed through an online shop, a buyer can anticipate that their order can be processed automatically. The designated period of five days in the affected general terms and conditions puts a strain on customers’ patience to such an extent that it exceeds what can be expected “under ordinary circumstances”.
