Prepayment in the online store: Attention to your own terms and conditions

As a lawyer specializing in IT law and contract law, I regularly draft general terms and conditions for various SaaS providers, services and online stores. Especially with online stores, I keep noticing that the terms and conditions directly or indirectly stipulate that payment should be made in advance (whether by credit card, PayPal or other payment methods). However, due to the problem of “invitatio ad offerendum”, it is stated elsewhere in the GTC that the contract is allegedly only concluded when the goods are sent. This contradictory provision puts consumers at a disadvantage, as they have to make advance payments before the contract is concluded without having the certainty that the contract will actually be concluded and the goods delivered.

OLG Nuremberg: Prepayment regulation without purchase contract is invalid

In the past, I have considered such provisions to be inadmissible, but they persist in many online stores’ general terms and conditions. The Nuremberg Higher Regional Court has now confirmed my assessment in its ruling of 30.01.2024 (Ref. 3 U 1594/23). It ruled that a clause in the general terms and conditions of an online store stating that the contract is only concluded when the goods are sent, while an advance payment is required elsewhere, is invalid. The court based its decision on the fact that such a clause unreasonably disadvantages the consumer (Section 307 BGB). The advance payment obligation suggests to the customer that a contract has already been concluded. The contradictory regulation on the conclusion of the contract leads to a lack of transparency and ambiguity to the detriment of the consumer.

Basic ideas of the legal regulation violated

The OLG Nuremberg saw the combination of an advance payment agreement and late conclusion of the contract as a violation of the fundamental principles of the statutory regulation within the meaning of Section 307 (1) No. 1 BGB. According to this, services should only be provided if there is a legal basis. A demand for performance may only be expressed if an effective legal obligation has already been established. The Senate stated: “In any case, the applicable civil law system is based on the principle that contracts are concluded by a consensus of the parties and that mutual obligations arise from this (Section 311 (1) BGB). Conversely, it is inherent in services that are not owed that they do not have to be provided; the legal system also does not recognize cases in which it is provided that such services (although not owed) are provided in order to persuade the other party to accept the contract. “The request for payment before the contract is concluded puts consumers at a disadvantage, as they can demand their money back if the retailer does not deliver, but cannot insist on delivery or claim damages. They have to forgo the money paid over a longer period of time without being certain that the goods will be delivered. With regard to their claims for performance and compensation, they are largely unprotected. The court emphasized: “In this respect, the effects of the provision in No. 1 of the General Terms and Conditions are much more significant for the ‘prepayment’ option than in the other cases. The customer, who will typically be in a poor financial position anyway if he chooses the ‘advance payment’ option, has to forgo liquidity for a period of around 2 weeks without having any certainty that the goods will be delivered.”

Consequences for online store operators: adapt general terms and conditions and systems

This ruling has far-reaching consequences for operators of online stores. It is now necessary to revise the GTCs to ensure that the time of contract conclusion is regulated clearly and transparently. An advance payment obligation must not contradict the conclusion of the contract. In addition, the delivery periods must be specifically stated so that the consumer can see how long he is bound by his offer and until when the trader can accept the offer. In particular, approximate information or time periods that do not allow a clear determination of the acceptance period are not permitted, and in addition to the adaptation of the GTC, the ERP systems and store programming must also be adapted accordingly. The ordering process and payment processing must be designed in such a way that they comply with the legal requirements for the conclusion of the contract. In particular, it must be ensured that the contract is concluded before or at the latest with the request for payment in order not to unreasonably disadvantage the customer. Communication with the customer, e.g. through order confirmations, must also be checked to see whether it gives the impression that a contract has already been concluded.

Conclusion

The decision of the Higher Regional Court of Nuremberg has significant implications for the design of general terms and conditions and ordering processes in online retail. Online store operators should promptly review their contractual conditions and processes and, if necessary, adapt them in order to minimize legal risks and protect the rights of consumers. as a lawyer for IT law and contract law, I strongly recommend that affected online store operators seek legal advice. An expert review and adaptation of the general terms and conditions as well as an optimization of the ordering process can help to avoid warnings and lawsuits and increase customer satisfaction, and I would be happy to support you in bringing your general terms and conditions and processes up to date with the current legal status and adapting them to the requirements of the OLG Nuremberg. Contact me without obligation to discuss your situation and find individual solutions. Together we will ensure that your online store is legally compliant and customer-friendly.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.