References without law book default to BGB.

Case - Doorstep Souvenirs

Facts

Diane (D) and her boyfriend Collin (C) are strolling around the old town of Regensburg. When crossing the famous stone bridge, a man dressed in a dark suit – souvenir shop owner Pavel (P) – walks up to them. He tells the couple about the beautiful models of the stone bridge he sells in his shop, which is only a few blocks away. P manages to persuade D and C to follow him into his shop. There, he shows the twosome several versions of model reproductions of the bridge.

C buys a model for EUR 100, which is handmade by prisoners of the Regensburg women’s prison, according to P.

After C and D return home to Munich the next day, they regret their purchase. Therefore, C writes a letter to P stating that he no longer wants the bridge model. D takes the letter and the bridge to the post office the next day. Unfortunately, the mail carriers of Regensburg are on strike for the next 2.5 weeks. That’s the reason why the package reaches P only after this period.

Because P does not contact C, C asks his lawyer friend Otto (O) whether he can demand repayment of the EUR 100 from P.

Solution

Slides Solution

• Issue: Can C demand repayment of the EUR 100 from P in line with §§ 355 III, 357 I BGB?
• Rule: He can demand repayment if the contract has been transformed into a restitution obligation by exercising the right of withdrawal (§ 355 I BGB). There must have been a contract (A) and the contract must have been withdrawn (B).
• Application:
  • A. Contract: → (+), sale of goods contract (§ 433 BGB) between C and P.
  • B. Did C effectively withdraw from this contract?
    • 1. Right of Withdrawal (§ 312g I BGB):
      • a) Consumer contract (§§ 312 I, 310 III BGB): C = consumer (§ 13 BGB) → (+), purchase for private purposes. P = trader (§ 14 BGB) → (+), sale for business purposes. Obligation to pay a price? → (+), C had to pay.
      • b) Distance or off-premises contract:
        • Distance contract? → (-), no means of distance communication.
        • Off-premises contract (§ 312b I BGB)? → § 312b I No. 3 BGB: contracts concluded on the business premises but where the consumer had been personally and individually addressed in a place which is not the business premises immediately prior. → (+), C met P on the bridge and was accompanied to his shop.
      • c) No exceptions according to § 312g II BGB? → (+)
      • → (+), Right of withdrawal exists.
    • 2. Effective exercise of the right of withdrawal?
      • a) Declaration of Withdrawal (§ 355 I 2 BGB): → (+), letter by C.
      • b) Within the relevant period of time: §§ 355 II, 356 II No. 1 lit. a BGB: 14 Days, starting from receiving the good.
        • When did the DoI reach P? After 2.5 weeks. Under general rules for DoIs, this is when it reaches the recipient’s zone of influence → usually too late!
        • Exception for withdrawal? § 355 I 5 BGB: “Dispatch of the withdrawal in good time is sufficient to comply with the time limit.” → (+), dispatch on the next day (= within 14 days).
• Conclusion: C effectively withdrew from the sale of goods contract. Therefore, the contract is transformed into a restitution obligation, and the goods/money exchanged must be transferred back (§§ 355 III, 357 et seqq. BGB). Thus, C can claim back his payment from P.

Write-Up

Issue: Can C demand repayment of the EUR 100 from P under the rules for withdrawal from a consumer contract (§§ 355 III, 357 I BGB)?

Rule: A valid sales contract (§ 433 BGB) exists between C and P. To demand repayment, C must have a statutory right of withdrawal, and he must have exercised it effectively.

Application:
1. Right of Withdrawal: Under § 312g I BGB, a consumer has a right of withdrawal for off-premises contracts.

• Consumer Contract: C acted for private purposes (consumer, § 13 BGB), and P acted for his commercial souvenir business (trader, § 14 BGB). C owed a price. Thus, a consumer contract exists (§ 312 I BGB).
• Off-premises Contract: The contract was concluded inside P’s shop. Generally, this is an on-premises contract. However, § 312b I No. 3 BGB defines a contract as an off-premises contract if it was concluded on the business premises but the consumer was personally and individually addressed by the trader in a place outside the premises immediately prior to the conclusion of the contract. P approached C on the stone bridge and lured him into the shop to make the sale. This fulfills the requirement.
• Exceptions: No exception under § 312g II BGB applies.

2. Exercise of the Right:
C must declare his withdrawal to P within 14 days of receiving the good (§§ 355 II, 356 II No. 1 lit. a BGB). C drafted a letter of withdrawal. Under general civil law principles, a declaration of intent between absent parties is only effective when it reaches the recipient (§ 130 I BGB). Due to the strike, the letter arrived after 2.5 weeks, which is outside the 14-day window.

However, § 355 I 5 BGB provides a special consumer protection rule for withdrawals: dispatching the declaration before the deadline expires is sufficient to comply with the time limit. C gave the letter to D, who took it to the post office the very next day. Because the dispatch occurred within the 14-day window, the withdrawal is timely and effective, shifting the risk of postal delays onto the trader.

Conclusion: C validly withdrew from the contract. Under §§ 355 III, 357 I BGB, the contract is unwound into a restitutionary relationship. C is entitled to repayment of the EUR 100 (concurrent with returning the bridge model).