Ricardo judgment (legal business theory)
The Ricardo judgment is a decision of the Federal Court of Justice (BGH) of November 7, 2001 ( BGHZ 149, 129 ff .; Az: VIII ZR 13/01) on the conclusion of contracts on the Internet , in particular at Internet auctions.
facts
The parties are arguing about whether they concluded an effective sales contract for a car at an Internet auction in July 1999 .
According to the general terms and conditions (AGB) of ricardo.de , § 156 BGB , § 34b GewO and the regulation on commercial auctions do not apply (preamble, paragraph 3 of the AGB). A bid represents a binding offer to buy (Section 4 (1)), whereby you must reach a possibly specified minimum price (Section 4 (4)). The offeror automatically declares himself in agreement with the highest valid bid ( acceptance ), provided that the minimum price has been reached (§ 5 Paragraph 4).
The defendant, part-time EU re-importer of motor vehicles, offered a new VW - Passat for starting price of 10 DM to (5.11 euros). He did not set a minimum purchase price. After five days, the auction ended with a maximum bid of DM 26,350 (EUR 13,472.54). The highest bidder requested the settlement, the bidder refused on the grounds that no contract had yet been concluded; However, he was allowed to sell the vehicle at a price of "approx. 39,000 DM "(19,940.38 euros) ready. As a precaution, he challenged his declaration of intent because of a mistake when entering the starting price.
Guiding principles
- Accepting terms and conditions in the context of internet auctions, according to which the highest bid is accepted in advance, constitutes binding declarations of intent (in contrast to the invitatio ad offerendum ). Regardless of the interpretation based on the auction house's terms and conditions, the declaration becomes effective upon receipt .
- Neither such declarations nor corresponding clauses in the auction house's general terms and conditions are subject to content control according to §§ 9 ff. AGBG (today: § 305 –§ 310 BGB).
- In principle, neither seller nor buyer are “users” within the meaning of § 1 AGBG. It remains to be seen whether the content control according to §§ 9 ff. AGBG will intervene.
- The closed during the auction, the contract is not a violation of § 34 GewO or VerstV void.
- Internet auctions are not a game of chance in the sense of § 762 BGB.
Reasons for decision
I. The court of appeal , the Hamm Higher Regional Court , has essentially stated that a purchase contract had been effectively concluded between the parties . The activation of the offer page by the defendant already represents a legally binding offer to sell [...] which the plaintiff accepted with his highest bid. The general terms and conditions […] formed the basis for interpretation as to how the parties […] were allowed to understand the respective declarations […] made. Insofar as the declaration made by the defendant with the activation [...] is referred to as acceptance, it is a legally harmless false description; in fact, this declaration already meets all the requirements for a legally binding offer and is not just an "invitatio ad offerendum". Even if the declaration of the defendant associated with the activation of the offer side were not to be regarded as an application within the meaning of Section 145 BGB, it in any case represented an anticipated declaration of acceptance with regard to the offer effectively submitted by the last bidder [...].
Also from the point of view of a general terms and conditions control there are no concerns about the effectiveness of the defendant's declaration of intent. The general terms and conditions […] did not develop any legal effect beyond their significance for the interpretation of the party declarations […], so that their effectiveness is irrelevant. [...]
The contestation of his declaration of intent declared by the defendant does not apply. As the defendant admitted in the course of his personal hearing , the alleged error of explanation did not exist; In addition, the causality of the error for the submission of the declaration of intent and the promptness of the declaration of avoidance are missing.
[...]
The liability is also actionable. The internet auction is not a game of chance within the meaning of § 762 BGB.
II. The revision is unsuccessful. The parties have concluded an effective sales contract for the [...] offered car.