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Case detail

B a c k

Directive article Article 6 1. (f)
Article 6 1. (g)
National ID 12 O 148/10
Country Germany Decision date 07/12/2011
Common name Decision type Court decision, first degree
Court Landgericht Detmold Plaintiff(s) Consumer Protection Agency
Court translation Regional Court Detmold (Detmold) Defendant(s) /
Subject right of withdrawal
Keywords terms & conditionscancellation of contractconsumer rightslegal rightsright of cancellation

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Headnote

It is a misleading commercial practice for a trader to deny a consumer its legal revocation right and instead insist on a cancellation of the contract which results in the payment by the consumer of a fixed compensation.

Facts

The plaintiff is a German consumer protection agency. The defendant distributes prefabricated garages to end consumers since April 2004.
The defendant advertised its prefabricated garages in local newspapers. After a short conversation with interested consumers over the phone the defendant sent an agent acting on his behalf to the consumer's premises in order to make individual offers, based on the circumstances of the respective locations etc. Upon this home visit the consumers were asked to sign a contract which did not include a notice on the consumer's mandatory withdrawal right.
When consumers later exercised their withdrawal right within the legally given timeframe of two weeks, the defendant denied the right of withdrawal and insisted instead to a cancellation of the contract, requiring a fixed compensation for loss and damages to an extent of 25 % of the contract value as was stipulated in its general terms and conditions.
The plaintiff claimed this behaviour to be unlawful as according to its opinion it inter alia infringed § 5 I  Nr. 3 and Nr. 7 UWG that implement Art  6 section (1) lit. f) and  g) of the UCP Directive.
 

Legal issue

Is it a misleading commercial practice for a trader to deny a consumer its legal right of withdrawal and instead insist on a cancellation of the contract which results in the payment by the consumer of a fixed compensation?

Decision

The court held that denying the right of withdrawal is a misleading commercial practice as it deceives the average consumer with regard to his consumer rights (§ 5 I Nr. 7 UWG; Art 6 No 1 lit. g) of the UCP Directive). The defendant's general terms and conditions, which did not include a right of withdrawal for the consumer, are therefore void.

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Result

The court granted the plaintiff's request.

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