German Federal Court of Justice, decision dated March 19, 2014,
case no. I ZR 185/12
(Up to now) it is quite normal for web shop operators to
emphasize a "money-back guarantee", a two year warranty
or something similar on their website in order to persuade
customers to buy their products.
The problem with such marketing slogans is that the web shop
operator is, in fact, advertising with features which are
self-evident when doing business with consumers. In B2C
transactions, a consumer always has the above mentioned rights
pursuant to mandatory law. The seller is in no position whatsoever
to effectively exclude them.
The Federal Court has now put an end to this kind of advertising
with features which are self-evident. The Court ruled that
advertising with such features, i.e. with rights which the customer
has anyway so that the seller's offer has no extra and does not
really stand out against offers from other suppliers, is
On the other hand, it is acceptable to draw attention to the
fact that the consumer has such rights as a matter of mandatory
law. By doing so, the seller will not stand out against its
However, if the seller voluntarily grants the consumer rights
over and above the compulsory legal requirements, then it can
advertise this. For example: Since the new E-Commerce Law came into
force in mid June 2014 (See
Orrick ECG Newsletter 1/2014) this will apply to a right to
return goods free of charge in connection with exercising a 14 day
right of withdrawal in e-commerce. Under the previous law, the
seller mandatorily had to bear the costs for such a return (and was
not allowed to advertise with a right to return free of charge),
whereas he can now shift these costs over to the customer.
E-Commerce companies should check the marketing slogans in their
web shops as to whether they contain features which are self
evident and, where necessary, make suitable changes in order to
avoid the risk of warnings.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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