The Federal Court today employed in a decision on the question, circumstances under which a provider even longer than 12 May terminate hours running eBay auction early and sell the thing offered elsewhere, without making himself against the hitherto highest bidder liable for damages.

The defendant offered on 17. More 2012 on the internet platform eBay for a period of ten days a generator at a starting price of 1 € an. At the 19. More 2012 he broke the auction prematurely. The plaintiff was at this time at the starting bid of 1 € Highest Bidder and desires – after the defendant sold the generator otherwise – now damages in the amount of the value of the generating unit (8.500 €).

The defendant claims, he was entitled to the General Terms and Conditions of eBay to cancel the auction without further, because they are still longer than 12 Hours would have run.

The auction was made on the basis of the relevant at this time Terms and conditions of eBay. It said, in part,:

“§ 9 No.. 11: Provider, which set a binding offer on the eBay site, only then may cancel bids and withdraw the offer, if they are legally entitled to. Additional Information. […]

§ 10 No.. 1 Set 5: At the end of the auction or premature termination of the offer by the supplier is established between providers and highest bidder a contract for the purchase of the article concluded, unless, the seller was legally entitled to, withdraw the offer and eliminate the present bids.”

The Link “Additional Information” in § 9 No.. 11 led u.a. following instructions:

“How do I end my listing early?

When you list an item on eBay's website, Always give a binding offer to conclude a contract for this product now and are bound for the duration of this offer Offer. It may happen, however,, that you need to finish a listing early, for example, if you find, you make a mistake when setting the article or articles to be sold during the offer period is damaged or lost without your fault.

Applies before exiting an offer:

• Make sure, that your reason for terminating the offer is valid. […]”

In addition, it was said among other:

“Item runs longer than 12 Hours

If the offer or 12 Hours or longer runs, You can finish it early without restrictions. If at the time of termination of the offer has bid on the item, you will be asked, if you want to cancel or sell the item to the highest bidder who bids. […]”

The district court dismissed the action. On appeal by the plaintiff, the Higher Regional Court the defendant to pay damages in the amount of 8.500 € sentenced. The approved by the Court of Appeal revision was not successful.

Who among other responsible for the Sales Law VIII. Civil Division of the Federal Court held, that the plaintiff is entitled to damages in lieu of performance in accordance with § 280 Abs. 1, 3, § 283 Set 1 BGB in the amount of 8.500 € deserve. Between the plaintiff and the defendant as the highest bidder is a sales contract for the generator at a price of 1 € come about.

The sales offer was interpreted from the perspective of participating in the auction bidder then, that it is only subject to an under § 9 No.. 11, § 10 No.. 1 Set 5 of the eBay User Agreement legitimate offer withdrawal was. As the Court of Appeals correctly stated, was none of the designated there reasons for the reduction in the Tender. Therefore, the offer was contrary to the revision not binding. Because of the in § 9 No.. 11 ATTACHING of the eBay User Agreement “More information” can not be found, that an offer may be withdrawn without a qualifying reason to. This also applies, if the auction - as here - yet 12 Hours or longer runs. The “More information” are only as a supplement to § 9 No.. 11 to understand the practical application of the offer redemption. After all its content are not intended, however, the - further restrict binding to the offer for the duration of the auction as this is already in § - the business model of an eBay auction underlying 9 No.. 11 and § 10 No.. 1 Set 5 of the eBay User Agreement happens.

* § 280 Damages for breach of duty

(1) Should the debtor has an obligation under the contractual relationship, the creditor compensation for the damage thereby incurred may require. This does not apply, if the debtor is not responsible for the breach of duty. (…)

(3) Damages instead of performance, the creditor may only under the additional requirements of § 281, of § 282 or § 283 require.

§ 283 Damages instead of performance at the exclusion of liability

Does the debtor under § 275 Abs. 1 to 3 not to make, the creditor under the provisions of § 280 Abs. 1 Claim damages in lieu of performance. (…)

Judgment of 10. December 2014 - VIII ZR 90/14

LG Nürnberg-Fürth – Judgment of 17. January 2013 – 7 The 6876/12

OLG Nuremberg – Judgment of 26. February 2014 – 12 You 336/13