The Higher Regional Court of Hamm has ruled that manufacturer’s warranty statements in operating instructions can give rise to a claim for injunctive relief against the retailer under the Unfair Competition Act if the retailer provides insufficient information about the manufacturer’s warranty in a sale on Amazon.

The problem with this case was that the online retailer did not explicitly advertise the warranty (although the LG Bochum itself does not require this, they this post), but linked from the item page on Amazon to the user manual.

In principle

According to § 312d para. 1 sentence 1 BGB iVm Art, 246a § 1 para. 1 sentence 1 no. 9 of the Introductory Act to the Introductory Act to the German Civil Code (EGBGB), in the case of contracts concluded away from business premises and distance contracts, the trader is obliged, among other things, to inform the consumer about the existence and conditions of guarantees. A similar obligation is contained in the provision – generally applicable to consumer contracts – in § 312a para. 2 sentence 1 BGB iVm Art. 246 para. 1 No. 5 EGBGB. From § 312a para. 2 sentence 3 BGB, it follows that in the case of contracts concluded outside business premises and distance contracts, the provision in Section 312d (3) BGB shall apply. 1 sentence 1 BGB iVm Art. 246a § 1 para. 1 sentence 1 no. 9 EGBGB is the more specific and overriding provision. The defendant violated this regulation.

and thereby applies:

aa) The provision in § 312d para. 1 sentence 1 BGB iVm Art. 246a § 1 para. 1 sentence 1 no. 9 Introductory Act to the German Civil Code (EGBGB) is (solely) linked to the existence of a guarantee declaration (of the product seller or a third party) (cf. Senate, judgment of 25.08.2016 – 4 U 1/16 – , para. 58).

The Higher Regional Court of Hamm then concurs with the opinion of the Regional Court of Bochum:

A special advertising emphasis of the guarantee is neither necessary according to the wording of the provision nor according to its purpose, namely to inform the consumer as comprehensively as possible about the pros and cons of concluding a contract (see in this regard Senate, judgment of August 25, 2016 — 4 U 1/16 – , para. 57), in order to open the scope of application of the aforementioned provision. Nothing to the contrary results from the aforementioned decision of the Senate: There, the Senate merely stated that the provision in $ 312d para. 1 sentence 1 BGB iVm Art. 246a § 1 para. 1 sentence 1 no. 9 EGBGB also applies if the information to be assessed is (only) mere advertising with a guarantee (Senate, judgment of 25.08.2016 – 4 U 1/16 – , para. 56); a limitation of the scope of application of the provision in § 312d para. 1 sentence 1 BGB iVm Art. 246a § 1 para. 1 sentence 1 no. 9 Introductory Act to the German Civil Code (EGBGB) on special advertising emphasis of guarantees cannot be inferred from the statements in the aforementioned Senate decision.

Ultimately, however, the chamber shirked a decision like the Bochum Regional Court:

It is irrelevant whether § 312d para. 1 sentence 1 BGB iVm Art. 246a § 1 para. 1 sentence 1 no. 9 of the Introductory Act to the German Civil Code (EGBGB) obliges the seller of a product to actively research the existence of (manufacturer’s) warranties for the offered product in order to be able to inform its customers in more detail about these warranties. However, the seller’s duty to inform shall apply according to its meaning and purpose in any case if the offer of goods – as in the present case – contains a reference (in any form whatsoever) to the existence of a warranty.

An appeal against the decision has been lodged with the Federal Court of Justice (I ZR 241/19). After the court cases regarding warnings about manufacturer warranties are really getting out of hand, it is to be hoped that the BHG will establish a few principles so that online retailers finally have more legal certainty.

If the result is that the sale of any product bearing a manufacturer’s warranty where the manufacturer’s warranty statement does not meet the legal requirements will be unfair and subject to warning, online retailers will have to be much more careful when drafting their product descriptions.