References without law book default to BGB.

Case - Silence as Acceptance

Facts

Fan merchandise distributor Boris (B) sends a football to Andy (A). To this day, A and B have not been in contact at all. The package contains a letter saying that A has to pay EUR 50 unless he returns the football within 14 days.

A doesn’t reply. After 14 days, can B demand payment of EUR 50 from A?

Solution

Slides Solution

• Issue: Can B demand EUR 50 in line with § 433 II BGB?
  • → B could demand EUR 50 if there is a valid sale of goods contract.
• Rule: A contract requires an offer, an acceptance, and, in each case, the intention to enter into a contract.
• Application:
  • A. Offer by B:
    • Explicit: → (-)
    • Implicit? → (+), by sending the football.
  • B. Acceptance by A:
    • Explicit: → (-)
    • Implicit? → A doesn’t act in any way. Silence is irrelevant. Even if there was an implicit DoI, it would not result in a contract or any other rights for B under § 241a I BGB (Unsolicited goods).
    • → No valid sale of goods contract.
• Conclusion: B can’t demand EUR 50 from A.

Write-Up

Issue: Can B demand payment of EUR 50 from A pursuant to § 433 II BGB?

Rule: For B to have a claim for the purchase price under § 433 II BGB, a valid sales contract must have been formed. A contract requires two matching declarations of intent: an offer (§ 145 BGB) and an acceptance (§ 147 BGB). Furthermore, under § 241a I BGB, the supply of unsolicited goods by an entrepreneur to a consumer does not establish a claim against the consumer.

Application:
1. Offer by B
B did not make an explicit verbal or written offer to sell, but he sent the football along with a letter stating A must pay EUR 50 if he does not return it. By sending the goods and demanding payment, B made an implicit (konkludent) offer to conclude a sales contract.

2. Acceptance by A
For a contract to form, A must have accepted B’s offer. A did not explicitly accept. He simply remained silent and did not return the football within 14 days.

In German civil law, silence is generally legally irrelevant and does not constitute a declaration of intent. An offeror cannot unilaterally impose a duty on the offeree to speak or act in order to reject an offer. Therefore, A’s failure to return the football does not constitute an acceptance.

Additionally, B is a fan merchandise distributor (an entrepreneur, § 14 BGB) and A is a private individual (a consumer, § 13 BGB). B supplied unsolicited goods to A. Under § 241a I BGB, the delivery of unsolicited goods by an entrepreneur to a consumer does not establish any statutory or contractual claims. Even if A’s silence could somehow be construed as an acceptance, § 241a I BGB prevents a contract from coming into existence or establishing any claim for B.

Conclusion: No contract was formed. B cannot demand payment of EUR 50 from A under § 433 II BGB.