Many online retailers use GTC clauses that provide for the conclusion of a contract by shipping the goods. But is such a clause even effective? And how quickly must an order confirmation be sent? The Munich Regional Court has taken a close look at these questions.

A consumer ordered a games console for €499.99 from an online store for consumer electronics. The store’s retailer used a GTC clause which states:

“A contract is only concluded by the declaration of acceptance by …, which is sent with a separate email (order confirmation or shipping confirmation), but at the latest when the order is sent.

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The consumer only received the order confirmation after five days.

A consumer protection association sued the online retailer for injunctive relief due to the use of the GTC clause and the breach of the obligation to send an order confirmation immediately.

GTC clause on conclusion of contract by shipping the goods invalid

In its judgment of 15.02.2022 – 33 O 4638/21, the Regional Court of Munich I declared the online retailer’s contested GTC clause on the conclusion of the contract by shipping the goods to be unlawful.

According to the judges, a waiver of access upon conclusion of the contract by shipping the goods constitutes an unreasonable disadvantage for the buyer. A disadvantage is considered unreasonable if the retailer attempts to abusively assert its own interests at the expense of its contractual partner by unilaterally drafting the contract without sufficiently taking the latter’s interests into account.

Concluding the contract “at the latest when the goods are dispatched”, as the retailer has stipulated in its GTC, would mean that the buyer would not have precise knowledge of the exact time at which the contract was concluded. However, this knowledge is particularly important for the consumer when shopping online, as the consumer must know when a contract is concluded. This also applies against the background of the statutory right of withdrawal.

Delayed order confirmation

The late dispatch of the order confirmation was also the retailer’s undoing. Online retailers must confirm receipt of the order to consumers electronically without delay.

In the opinion of the court, this requirement is in any case fulfilled if the electronic confirmation of receipt is received by the consumer a few hours after the order, or in the case of orders in the late evening hours on the next day during the trader’s normal business hours.

In the case of the online retailer, however, it only sent the order confirmation to the consumer after five days, which was far too late. Even an increased order volume does not release the retailer from this obligation. Rather, the retailer would have to take reasonable precautions for such cases, such as booking additional server capacity.

CONCLUSION

Online retailers should check whether they use clauses in their GTCs to conclude contracts by shipping the goods and have them revised immediately.

Online retailers should also organize their processes and capacities in such a way that an order confirmation is sent immediately.