References without law book default to BGB.

Case - Supermarket Strawberries

Facts

John (J) visits D supermarket (D), which is operated as a German private company (GmbH) in Munich Schwabing. He notices a yellow sign stating a discounted price of EUR 2 per bowl of strawberries (instead of EUR 3 each). He grabs three of them and proceeds to the checkout.

The cashier (C) scans the three items and asks J to pay EUR 9. When J mentions the special offer sign, C replies that this must be a mistake and insists on the payment of the higher price. However, J disagrees and refers to forming a contract at a price of EUR 2 per bowl.

Have they entered into a contract for a price of EUR 2 each?

Solution

Slides Solution

• Issue I: Can a GmbH enter into a contract?
  • → A GmbH is a legal person and can enter into contracts.
• Issue II: Is there a valid sale of goods contract at a price of EUR 2 per bowl according to § 433 BGB?
• Rule: A contract requires an offer, an acceptance, and, in each case, the intention to be legally bound / enter into a contract.
• Application:
  • A. Offer
    • Placement of strawberries in the supermarket: → (-), it is merely an invitation to treat (invitatio ad offerendum).
    • J giving the bowls to C at the checkout: → (+). The price is EUR 2/bowl, as the declaration contains the price shown on the sign in the supermarket.
  • B. Acceptance
    • Acceptance by C? → The horizon of an objective recipient would be the price stored in the supermarket system (EUR 3/bowl).
    • → Acceptance (-), but it constitutes a counteroffer at EUR 3/bowl under § 150 II BGB.
    • Acceptance of counteroffer by J? → The counteroffer was not accepted by J.
• Conclusion: There is no valid contract for a price of EUR 2 each.

Write-Up

Issue: Can J demand the transfer of ownership of three bowls of strawberries for a price of EUR 2 each from the supermarket D (GmbH) pursuant to § 433 I 1 BGB?

Rule: A valid sales contract under § 433 BGB requires two matching declarations of intent: an offer (§ 145 BGB) and an acceptance (§ 147 BGB). Additionally, the parties must have the legal capacity to contract.

Application:
1. Capacity to Contract
The supermarket D is a German private limited company (GmbH). As a legal entity (legal person), a GmbH possesses legal capacity and can enter into contracts through its representatives (here: the cashier C acting as an agent/employee).

2. Formation of a Contract
a) Offer by D (Supermarket Display)
The placement of the strawberries on the supermarket shelf with a yellow price sign of EUR 2 does not constitute a legally binding offer. If it were, the supermarket could be bound to sell more goods than it has in stock. Therefore, it is merely an invitation to submit offers (invitatio ad offerendum).

b) Offer by J
By bringing the three bowls to the checkout counter, J makes an implied offer to buy the strawberries. J’s offer is based on the EUR 2 per bowl price he saw on the sign. Thus, J made a valid offer to buy three bowls for EUR 6 in total.

c) Acceptance by C (for D)
The cashier C scanned the items and demanded EUR 9. From the perspective of an objective recipient (§§ 133, 157 BGB), C’s declaration does not accept the offer of EUR 2 per bowl, but rather relies on the EUR 3 per bowl price stored in the supermarket’s checkout system. Under § 150 II BGB, an acceptance with modifications is considered a rejection of the original offer coupled with a new offer (counteroffer). Thus, C rejected J’s offer and made a counteroffer to sell them for EUR 3 per bowl.

d) Acceptance of Counteroffer by J
J disagreed and insisted on the EUR 2 price. Therefore, J did not accept C’s counteroffer.

Conclusion: Because there were no matching declarations of intent regarding the price, no valid contract was formed between J and D.