Article 6 1.
||National ID||13076/2010, VII d.|
|Common name||Decision type||Supreme court decision|
|Court||Върховен административен съд (София)||Plaintiff(s)||Consumer Protection Commission|
|Court translation||Supreme Administrative Court (Sofia)||Defendant(s)||HIK EOOD|
|Keywords||inadvertent errors, misleading actions, misleading commercial practices, misleading statements|
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A commercial practice is not misleading when the consumer is acquainted with the terms and condition and when, due to merely technical problems, for a short period of time the consumer is under the false impressions that he has purchased a product against beneficial conditions, especially when the consumer has already taken its transactional decision before the commercial practice concerned.
The defendant organised online jewellery auctions. In order to register for participation to the auctions, consumers had to confirm that they had read and understood the terms and conditions for staging of and participating to the auction.
The terms and conditions provided that the price offered by the consumer was considered as an offer to the defendant and the latter was free to accept or decline that offer. A subsequent purchase agreement could only be concluded through telephone. The fact that one of the participants to the auction offered the highest price did not automatically give him the right to purchase the item.
In the current case, the consumer offered the highest price for two pieces of jewellery and after that received an e-mail stating that he was the winning bidder in the auction. Shortly after that, the consumer received another email clarifying that, due to technical problems and an overload of the website, the earlier e-mail confirmation was sent out by mistake. The manager of the defendant explained the situation to the consumer in person and apologised for the misunderstanding.
The plaintiff held the defendant liable for providing misleading information under the above circumstance. In the plaintiff’s opinion, through the receipt of the first e-mail, the consumer was misled and thus the defendant’s conduct qualified as an unfair commercial practice.
Is a commercial practice misleading when the consumer is acquainted with the terms and condition and when, due to merely technical problems, for a short period of time the consumer is under the false impressions that he has purchased a product against beneficial conditions?
The court concluded that the plaintiff was not liable for providing misleading information.
Although the first e-mail misled the consumer, it was not in effect capable of distorting the consumer’s economic behavior, as the consumer had already taken a transactional decision before the misleading commercial practice.
|URL Decision||Decision full text|
The court upheld the judgment of the first instance court that overturned the plaintiff’s ruling. The defendant’s liability was dismissed.
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