The VIII Civil Senate of the Federal Court of Justice has ruled that a contract of sale concluded by a consumer with an online retailer over a mattress sealed with a protective film does not involve a contract for the supply of sealed Goods that are unsuitable for return for reasons of health protection or hygiene if the seal is removed after delivery (Section 312g (2) No. 3 BGB). The consumer is therefore entitled to make his declaration of intent on the conclusion of the contract in accordance with Section 312g para. 1 BGB if he has removed the protective film.

That case-law follows, as a result and in the statement of reasons, the criteria set by the Court in response to the Order for Reference of the Senate of 15 November 2017 in its judgment of 27 March 2019 (C-681/17). See this article. The German exception provision of Paragraph 312g(3) 2 No. 3 of the BGB refers to the same provision of European law in Article 16(c) of the Code of Appeal. e the Consumer Rights Directive, which the German legislature wanted to transpose completely into German law.

An exception to the right of withdrawal granted in principle to consumers in the case of distance contracts must be denied, in particular with regard to its purpose and purpose. The right of withdrawal is intended to protect the consumer in the particular situation in distance trading, in which he has no possibility to see the product before the conclusion of the contract and to take note of its characteristics. This disadvantage is to be compensated by the right of withdrawal, which gives the consumer an appropriate period of consideration during which he has the opportunity to inspect and try out the purchased goods.

With this in mind, the derogation only intervenes if, after the removal of the sealing of the packaging, the product contained therein is permanently no longer marketable for reasons of health protection or hygiene, because the trader has taken measures which it re-marketable while protecting health or hygiene, could not or could only take action under disproportionate difficulties.

When this standard is set, a mattress whose protective film has been removed by the consumer is not covered by the exception. A mattress can be equated with a garment that can also come into direct contact with the human body with regard to the right of withdrawal. It must be assumed that, with regard to both goods, traders are in a position to re-market them after return by means of a treatment such as cleaning or disinfection for re-use by a third party and thus for re-marketing. to do.

Since the Court of Appeal interpreted the announcement of the return of the mattress and the request for payment of the transport costs as a declaration of revocation without error, the parties were in accordance with Section 355 para. 1 BGB is no longer bound by its declarations of intent directed towards the conclusion of the contract, with the result that the defendant online retailer must reimburse the applicant for the purchase price and the transport costs incurred. The defendant’s appeal was therefore unsuccessful.