References without law book default to BGB.

Exam Winter 2023

Case - Defective Printer

Facts

Anna (A) is a freelance website designer, working two days a week. Accordingly, her annual turnover is usually about EUR 30,000. She does not have employees and usually works from home.

a) One fateful evening Anna’s printer breaks down. She is in a hurry because she needs to get some important documents printed, signed and sent to a client. Thus, she walks into the nearby computer store “Bitcomp GmbH” (B) and chooses a fairly standard black/white printer for EUR 179. It is obvious that the box containing the printer has been opened and sealed before. Anna opens the box, looks inside but notices nothing suspicious. She proceeds to the checkout. She is welcomed by Tom (T), a 17-year-old student who earns a little bit of money to top up his pocket money (which is highly welcomed by Tom’s parents). Tom scans the barcode on the printer box, receives EUR 179 in cash and wishes Anna a nice evening.

At home, when plugging in the printer, Anna notices that the printer shows some signs of prior use. Indeed, the printer had served as a presentation device for interested customers. Although it is absolutely functional, it has some scratches on the sides (which were not visible from outside the box/without unwrapping). Furiously, Anna heads back to the store the next morning. The store’s general manager tells her that he would be happy to replace the printer, but the model has been phased out because the company now focuses on colour printers. To his knowledge, this model is not available on the market any more. Besides, he asks why Anna did not notice that the box had been opened. Anna replies that she could not notice the scratches without unwrapping the printer. She is outraged about this bad example of customer service. She says that “she wants her money back, all of it”, or at least “some of it”, as the device is obviously not new.

Can Anna return the printer, or at least claim a discount? (17.5 P)

b) After this unpleasant episode, Anna decides to buy a “proper” printer on the website of a huge department store. She decides to go with a high-profile device for EUR 499. She plans to use it for private purposes (about 70%) as well as for work (about 30%).

Anna puts in the order on 12 April and receives a confirmation email (containing all necessary information regarding her consumer rights) straight away. The printer is delivered on 14 April. After unwrapping it, Anna realises that the printer is actually way too big for her desk. Unfortunately, she catches a virus (probably the “real” flu) on the very same day and thus does not get around to contacting the online store. After feeling better some days later, on 27 April, she finally writes an email to the online store, saying that “the printer is fine, but she wants to give it back”. After reading the email (on 30 April), the online store’s sales assistant wonders whether her email is on time or too late.

Does Anna (still) have a valid contract with the online store regarding the printer? (13 P)

Solution

Solution Summary

Part a: Purchase of the Scratched Printer

• Issue I: Validity of the Sales Contract
  • T is a minor (17 years old) with limited legal capacity (§ 106 BGB).
  • T acted as an agent/representative for B. Under § 165 BGB, a representative’s limited capacity does not affect the validity of a declaration of intent made in the principal’s name.
  • Tom’s employment contract was authorized by his parents, giving him capacity for related transactions (§ 113 I BGB). Even if the employment contract were invalid, the power of representation is independent of it (abstraction principle). Under § 56 HGB, a factual employment relationship is sufficient to establish statutory authority to sell store goods.
  • → (+) Valid sales contract concluded between A and B (§ 433 BGB).
• Issue II: Material Defect at Passing of Risk
  • Objective requirements (§ 434 III BGB): Goods must have customary and expected quality. A buyer paying full price for a new printer expects an unused device, not a used presentation device with scratches.
  • → (+) Material defect (§ 434 III 1 No. 2 BGB) present at the passing of risk (§ 446 BGB).
• Issue III: Exclusion of Rights under § 442 I 2 BGB
  • A knew the box was opened, but did not know about the scratches.
  • Not unwrapping the printer in the store does not constitute gross negligence, as scratches were on the sides and not visible from outside the box.
  • → (-) Rights are not excluded.
• Issue IV: Inspection/Notification Duty under § 377 HGB
  • Only applies if the purchase is a commercial transaction for both sides.
  • A is a freelance designer with small turnover and no employees. She is not a merchant under § 1 HGB or § 2 HGB.
  • → § 377 HGB does not apply.
• Issue V: Transaction Type
  • A bought the printer to print documents for a client. Thus, she acted as an entrepreneur (§ 14 BGB).
  • → This is a B2B transaction, not a purchase of consumer goods (§ 474 BGB).
• Issue VI: Buyer’s Remedies (§ 437 BGB)
  • A wants a full refund (revocation) or a discount (price reduction).
  • Normally, setting a deadline for cure is required (§ 323 I BGB).
  • However, the printer is phased out and unavailable on the market. Replacement delivery is impossible (§ 275 I BGB). A used presentation device cannot be repaired to make it “new”. Thus, cure is impossible.
  • No deadline is required under § 326 V BGB (or § 440 BGB).
  • Defect is not trivial (§ 323 V 2 BGB).
  • → Revocation (§§ 437 No. 2, 326 V BGB): A can return the printer and get a full refund of EUR 179 (§ 346 I BGB).
  • → Price Reduction (§§ 437 No. 2, 441 BGB): Alternatively, A can choose to reduce the price and claim a discount.
• Conclusion on a: Yes, Anna can return the printer for a full refund or claim a discount.

Part b: Online Purchase and Withdrawal

• Issue I: Consumer Status and Right of Withdrawal
  • Mixed-use purchase: 70% private, 30% work.
  • Under German/EU law, a mixed-use transaction qualifies as a consumer transaction (§ 13 BGB) if the private purpose is predominant. 70% private use means A is a consumer.
  • The seller is a department store (entrepreneur, § 14 BGB).
  • Online order constitutes a distance contract (§ 312c BGB).
  • → (+) A has a statutory right of withdrawal (§ 312g I BGB).
• Issue II: Timeliness of Withdrawal
  • Withdrawal period is 14 days (§ 355 II 1 BGB).
  • Period starts upon receipt of goods on 14 April (§ 356 II No. 1a BGB).
  • Under § 187 I BGB, 14 April (delivery day) is excluded. Period runs from 15 April to 28 April (§ 188 II BGB).
  • A’s illness is legally irrelevant as the deadline is a strict preclusion period.
  • A sent the email on 27 April.
  • Under § 355 I 5 BGB, sending the withdrawal before the deadline is sufficient to meet the deadline. Receipt/reading on 30 April is irrelevant.
  • → (+) Withdrawal was declared in time.
• Issue III: Extinguishment of Contract
  • The timely declaration of withdrawal dissolved the contract into a restitution relationship (§ 355 I 1 BGB).
• Conclusion on b: No, Anna does not still have a valid contract with the online store, as she successfully withdrew from it.

Advanced Legal Analysis

The topics analyzed below (Factual Employment, Dual-Use Consumer Status, AGB Content Control, and Generic Debt Successors) were not covered in the lectures and are therefore out of scope for the exam. They represent advanced commercial, labor, and consumer protection law issues.

Topic 1: Factual Employment Relationship

• Issue: Does the invalidity of Tom’s employment contract affect the validity of the sales contract concluded through him?
• Rule: Under German labor law, if an employment contract is invalid (e.g., due to a lack of proper parental signature for a minor under §§ 106, 107 BGB), but the employee has already taken up work with the consent of the employer, the relationship is treated as a valid factual employment relationship for the period of active work.
• Application: Even if Tom’s employment contract lacked the formal written consent of his parents, he was actively working at the cash register with B’s consent. For the purposes of § 56 HGB (authority of store clerks), a factual employment relationship is fully sufficient. Therefore, the statutory authority to sell the printer stands, protecting A’s interest in the validity of the purchase.
• Conclusion: The sales contract remains valid regardless of any potential defects in T’s underlying employment contract.

Topic 2: Dual-Use/Mixed-Use Consumer Status (ECJ Gruber Case)

• Issue: Does Anna’s dual-use purchase (70% private, 30% business) qualify her as a consumer under § 13 BGB?
• Rule: Under European Court of Justice case law (Gruber case, C-269/03) and BGH jurisprudence, a dual-use transaction is only classified as a consumer transaction if the professional purpose is so insignificant as to be negligible in the overall context of the transaction. If the professional purpose is non-negligible, the buyer is treated as an entrepreneur (§ 14 BGB).
• Application: In this case, A plans to use the printer 30% for her freelance work. Under a strict interpretation of the Gruber case, a 30% professional use is not negligible, which would classify A as an entrepreneur, thus stripping her of the right of withdrawal. However, BGH case law is slightly more consumer-friendly, stating that a natural person is a consumer unless the transaction is clearly attributable to their commercial/professional activity. Furthermore, if A requested an invoice with her business name or VAT number for tax write-offs, she would be treated as an entrepreneur.
• Conclusion: Under strict EU law (Gruber), A’s right of withdrawal might be denied due to the non-negligible professional share (30%), whereas BGH case law would likely protect her as a consumer based on the predominant private share (70%).

Topic 3: Content Control of Standard Terms (AGB Control - § 307 BGB)

• Issue: Could B exclude liability for cosmetic defects (like scratches) in B2B transactions using standard terms and conditions (AGB)?
• Rule: Under § 310 I BGB, the strict list of prohibited clauses in §§ 308, 309 BGB does not apply to B2B contracts. However, B2B standard terms are still subject to content control under the general clause of § 307 BGB, which voids clauses that unreasonably disadvantage the other party contrary to good faith.
• Application: A clause in B’s AGB excluding all liability for cosmetic defects or used presentation items sold at full price would likely be considered an unreasonable disadvantage under § 307 I, II BGB, as it departs from the core statutory obligation of the seller to deliver non-defective goods (§ 433 I 2 BGB).
• Conclusion: Any attempts by B to exclude liability for these scratches via pre-formulated standard terms would likely be void under § 307 BGB.

Topic 4: Successor Model Delivery for Generic Debts

• Issue: Does the phasing out of the specific printer model automatically lead to impossibility under § 275 I BGB?
• Rule: A purchase of a standard printer is a generic debt (§ 243 I BGB), meaning the seller must deliver a thing of average kind and quality. If a specific model is phased out, the generic debt is not automatically impossible if a comparable successor model or equivalent model exists in the market.
• Application: The manager stated that the printer model was phased out and unavailable on the market. In a strict generic debt, if the entire genus (the specific model line) is unavailable, performance is impossible. However, if the contract is interpreted as a purchase of a “standard black/white printer” rather than that exact model, B might have been obligated to deliver a successor model of equal or better value. Since A chose a specific printer box in the store, the generic debt had already been concentrated to that specific unit upon selection and handover (§ 243 II BGB). Thus, impossibility did arise for that specific unit and model line.
• Conclusion: Because the transaction was concentrated on a specific unit and the model line is phased out, cure is indeed impossible under § 275 I BGB.

Write-Up

Question a: Return or Discount for the Scratched Printer

Issue: Can Anna (A) demand a full refund (revocation of the contract) or a discount (price reduction) from Bitcomp GmbH (B) for the wrongly delivered used printer with scratches under § 437 BGB?

Rule: Under § 437 BGB, the buyer has rights to cure, revocation, price reduction, or damages if there is a valid sales contract (§ 433 BGB), a material defect (§ 434 BGB) at the passing of risk (§ 446 BGB), and no exclusion of rights. If both parties are merchants under the HGB, the commercial transaction rules apply, requiring the buyer to immediately inspect and notify the seller under § 377 I HGB; otherwise, the goods are deemed accepted under § 377 II HGB.

Regarding contract formation: Under § 106 BGB, a minor (7 to 18 years old) has limited legal capacity. Under § 165 BGB, a representative’s limited capacity does not affect the validity of a declaration of intent made in the principal’s name. Under the principle of abstraction, the validity of a representative’s power of representation is independent of the validity of the underlying employment relationship. Under § 113 I BGB, if legal representatives authorize a minor to enter employment, the minor has full capacity for transactions related to that employment. Under § 56 HGB, a person employed in a store is deemed authorized to make sales and deliveries that are customary in such a store; a factual employment relationship is sufficient to establish this authority.

Under § 442 I 2 BGB, a buyer’s rights for defects are excluded if they are grossly negligent in not knowing about the defect, unless the seller fraudulently concealed it. Gross negligence requires a serious disregard of ordinary care.

Under § 439 I BGB, cure consists of repair or replacement. If cure is impossible under § 275 I BGB, the claim for cure is excluded, and the buyer can revoke the contract immediately without setting a deadline under § 326 V BGB. Under § 323 V 2 BGB, revocation is only excluded if the defect is trivial. Alternatively, the buyer can reduce the purchase price under § 441 BGB (which is possible even if the defect is trivial).

Application:

1. Contract Validity: Tom (T) is 17 years old and has limited legal capacity (§ 106 BGB). However, T did not act in his own name, but as an agent/representative for B. Under § 165 BGB, T’s limited capacity is irrelevant for representation, so he could legally represent B. Furthermore, T’s parents welcomed his job, implying consent was given. Under § 113 I BGB, this gives T full capacity to perform transactions related to his job, including checkout sales. Even if the employment contract were invalid, the power of representation is independent of the underlying employment contract (principle of abstraction). For § 56 HGB, a factual employment relationship is sufficient, which is met since T was active at checkout with B’s consent. Therefore, T validly represented B under § 164 I BGB, and a valid sales contract was concluded under § 433 BGB.
2. Material Defect: The printer was a used presentation device and had scratches on the sides. Under objective requirements (§ 434 III 1 No. 2 BGB), a buyer paying the standard price expects a brand-new, unused device. The signs of use and scratches deviate from this customary quality, constituting a material defect at the passing of risk (§ 446 BGB).
3. Exclusion of Rights (§ 442 I 2 BGB): A knew the box was resealed, but did not know about the scratches. The scratches were on the sides and only visible after unwrapping. A customer at checkout is not expected to completely unwrap and pack an item. Thus, A’s lack of knowledge was not grossly negligent, and her rights are not excluded.
4. Inspection and Notification Duty (§ 377 HGB): B is a merchant, but A is a freelance website designer working part-time with low turnover and no employees. She is not a merchant under § 1 II HGB or § 2 HGB, and a freelance liberal profession is not a trade. Since A is a non-merchant, § 377 HGB does not apply.
5. Remedies: A purchased the printer to print documents for a client, so she acted as an entrepreneur (§ 14 BGB). This B2B transaction is not a purchase of consumer goods (§ 474 BGB). The printer model is phased out and unavailable on the market. Delivering replacement units is impossible (§ 275 I BGB), and a used presentation device cannot be repaired to make it “new”. Because cure is impossible, A can revoke the contract without setting a deadline under § 326 V BGB. The defect is not trivial since used presentation devices have lower value. Upon revocation, the contract is converted into a restitution relationship under § 346 I BGB, allowing a return for a full refund (EUR 179). Alternatively, A can declare a price reduction under § 441 BGB to claim a discount.

Conclusion: Anna can return the printer and claim a full refund of EUR 179 under §§ 437 No. 2, 326 V, 346 I BGB, or keep the printer and claim a discount under §§ 437 No. 2, 441 BGB.

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Question b: Validity of the Online Contract

Issue: Does Anna (A) still have a valid sales contract with the online store regarding the high-profile printer?

Rule: A valid sales contract (§ 433 BGB) is dissolved and converted into a restitution relationship if the buyer successfully exercises their right of withdrawal under distance contract law (§ 355 I 1 BGB, § 357 I BGB).

Under § 312g I BGB, a consumer has a right of withdrawal under § 355 BGB in the case of distance contracts (§ 312c BGB). A distance contract is concluded between a consumer (§ 13 BGB) and an entrepreneur (§ 14 BGB) using exclusively means of distance communication. Under § 13 BGB, a natural person is a consumer if the transaction’s purpose is predominantly neither commercial nor professional. In mixed-use contracts, consumer status is granted if the private purpose is predominant (e.g. >50%).

Under § 355 I BGB, the right of withdrawal is exercised by declaration to the trader, without stating reasons. Under § 355 II 1 BGB, the withdrawal period is 14 days, starting upon receipt of the goods by the consumer (§ 356 II No. 1a BGB). Under § 187 I BGB, the day of receipt is excluded. Under § 188 II BGB, the period ends at the end of the 14th day. The statutory withdrawal period is a strict preclusion period; personal impediments, such as illness, do not pause or extend the deadline, and reinstatement of the original position is not available. Under § 355 I 5 BGB, it is sufficient to meet the deadline if the declaration of withdrawal is sent before the period expires.

Application:

1. Right of Withdrawal: A bought the printer for mixed purposes (70% private, 30% work). Since the private use predominates, A is a consumer under § 13 BGB. The online department store is an entrepreneur (§ 14 BGB). The online order constitutes a distance contract under § 312c BGB, giving A a right of withdrawal (§ 312g I BGB).
2. Declaration of Withdrawal: A’s email on 27 April (“the printer is fine, but she wants to give it back”) is a clear declaration of withdrawal.
3. Timeliness: A received the printer on 14 April. Excluding the day of delivery (§ 187 I BGB), the 14-day period started on 15 April and expired at 24:00 on 28 April (§ 188 II BGB). A’s flu is legally irrelevant since she is not entitled to any extension of the strict preclusion period. However, A sent the email on 27 April, which is before the 28 April deadline. Under § 355 I 5 BGB, the dispatch date is relevant, making the date of receipt by the store (30 April) irrelevant. Therefore, the withdrawal was declared in a timely manner.
4. Effect: The timely declaration of withdrawal dissolved the contract into a restitution relationship (§ 355 I 1 BGB).

Conclusion: No, Anna no longer has a valid sales contract with the online store, as the contract was successfully dissolved by her timely declaration of withdrawal.