1. Whether an email sent to the customer automatic response in addition to the knowledge of the Declaration § 312i Abs. 1 No.. 3 BGB also includes any operation designed to contract acceptance declaration of intent, is by design to §§ 133, 157 identify BGB.
2. One with "order confirmation" overridden automatic email, a knowledge statement according to § 312i Abs. 1 No.. 3 BGB includes, is regularly interpreted as aimed at the contract acceptance declaration of intent at the same time.
3. The knowledge in a statement according to § 312i Abs. 1 No.. 3 BGB statement set "Thank you for your order. We will process your order immediately. "Leaves in interpreting regularly to the conclusion, that at the same time that necessary to contract acceptance declaration of intent is issued (otherwise OLG Nürnberg, Decision of 10.06.2009, 14 You 622/09; OLG Oldenburg, Decisions of 12.06.2008 and 04.07.2008, 5 You 92/08).
4. The challenge of the grounds of erroneous pricing in an online store to able-down contract due to statement error is in addition to the presentation of an unwanted Pricing also requires a specific description, that the disintegration of the inner will and outer declaration facts due to an error in data entry or forwarding, otherwise also not to challenge justifying a calculation error would be considered.
5.The final via an online store client can exercise a due to erroneous calculation with a significantly low price excellent contract according to § 242 BGB in any case not invoke the Treaty, if he has the faulty Pricing positively recognized upon conclusion and implementation of the contract is unreasonable for the seller par excellence. The mere detection of faulty Pricing alone is not enough to accept an abuse of rights on the other hand from (otherwise OLG München, Decision of 15.11.2002, 19 The 2631/02).

OLG Düsseldorf I-16 U 72/15 from 19.05.2016

District Court Wuppertal, 11 The 37/15

§ 312i Abs. 1 No.. 3 BGB

…

The appeal by the applicant against the at 17.03.2015 announced the judgment 1. Commercial Chamber of the Landgericht Wuppertal - Az.: 11 The 37/15 - Is dismissed.
The costs of the appeal, the applicant.
This and the first instance judgment is provisionally enforceable without security. The applicant may enforcement by providing security in the amount of 110% the turn following the judgment enforceable amount, unless the defendant previously security of 110% of each to be enforced amount guaranteed.
The revision is not approved.

…

I.
3
The applicant, a company active in the field of insulation technology companies, requires the defendant to the fulfillment of a disputed between the parties purchase agreement 10 Generators Brand MK… .
4
The defendant offered where it operates online store on the Internet gasoline-powered generators of the brand M… type G-4300 IS to. At the 01.02.2014 were these generators in the online shop of the defendant at a price of 24,00 € excellent plus VAT. The applicant had for their own business operations no use for such generators. The director of the applicant, who recognized, that there was an incorrect pricing, wanted to buy the devices low and then resell at a profit. he ordered by entering the Internet at 01.02.2014 against 20:48 Clock 10 these devices to the excellent price. During the same period has been determined the fair market value of the units of the same computer via search on Google. About the same computer ordered at 02.02.2014 the well-known with the applicant's Witness F ... also 10 Pieces of these devices to the corresponding excellent price.
5
The defendant sent the applicant still 01.02.2014 an automatically generated on your computer system email with the following content:
6
"Order confirmation for your order from 01.02.2014:
7
amount
Article
Product
EUR Single
EUR total
3
300157
M… G 4300 IS Generator
24,00
72,00
4
300157
M… G 4300 IS Generator
24,00
96,00
3
300157
M… G 4300 IS Generator
24,00
72,00
shipping:
0,00
sum:
240,00
19% VAT.:
45,60
total:
285,60
8
shipping:
9
If the parcel service UPS. With a net value of up to EUR 100,- We charge a shipping fee of EUR 7,50 plus. VAT. In overlying hum of domestic shipping is free for. About the goods issue they will be informed by e-mail.
10
payment:
11
Payment by invoice - Only registered customers.
12
We refer to our delivery- and payment.
13
…
14
Thank you for your order. We will process your order immediately.
15
Your ... H ... UAB "
16
With email from 02.02.2014 informed the defendant of the applicant with the following:
17
"Due to a system failure, we can make your online order from 01.02.2014 not execute and cancel this contract. "
18
The applicant requested the delivery of the equipment upon payment of 285,00 €, last a deadline until 28.02.2014 and then instructed her present counsel to represent it. According to a further, now lawyer request for delivery, they brought an action. For the pre-litigation representation she turned legal fees based on a 1,3 Annual fee for a dispute of 285,60 € besides lump sum for expenses totaling 70,20 € to.
19
The applicant took the view, through their input as an offer and the email of the defendant of 01.02.2014 as acceptance is a contract of sale 10 Generators for a total price of 285,00 € come about. This email is for that reason be construed as acceptance, since it is overwritten with "order confirmation" and the purchase price will be charged. As far as the statement also according to § 312i Abs. 1 Set 1 No.. 3 BGB required confirmation of receipt is to be seen, had this been clearly associated with a simultaneously declared acceptance of the offer. A challenge did not explain the defendant. In the email from 01.02.2014 relied on the defendant a system failure, not on a lack of consent. It is not clear, if the will to "cancellation" of the contract to a challenge, should receive a termination or revocation of the contract, what to the detriment of the defendant. On Abuse of rights they can not rely, since they themselves from the email 02.02.2014 false information did. In it she Reflect untruthfully System malfunction, would preclude the execution of the order.
20
The applicant requested,
21
1.
22
order the defendant, to them 10 M… G 4300 IS generators train to train against payment of 285,60 € surrendered;
23
2.
24
determine, that the defendant is in default;
25
3.
26
order the defendant, to the applicant extrajudicial legal fees in the amount of 70,20 to pay €.
27
The defendant applied,
28
dismiss the action.
29
It has an unspecified "errors online typing" claims. Because this electronic input error is a price of 285,60 € for 10 confirmed generators. It should be apparent, that they did not want to give an explanation of the issue here contents. Referring to a letter from the Fa. M ... she claimed, their subscription price lies with 2.642,00 € net per piece. The fair value of the generators lie at least at this level or above. They took the view, was occurring no sales contract, since automatic message from 01.02.2014 only as acknowledgment of the receipt of the applicant's tender (knowledge Policy) and should not be interpreted as a declaration of intent to conclude a contract. Even if the 01.02.2014 A purchase agreement was concluded, did this by using the email 02.02.2014 successfully challenged due statement error. The use of the word "challenge" is not needed here. From the wording of the email is adequately clear, that they do not have a contract of disputed contents want to give. Even if only a concealed calculation error would be active as unremarkable for contesting Scene error, could the applicant does not insist on implementing the contract because of abuse of rights, as these have already recognized when the contract, that this would be unacceptable for them simply.
30
The 1. Commercial Chamber of the Landgericht Wuppertal dismissed the action by judgment of 17.03.2015 rejected. It could stand to go, whether a purchase agreement had been concluded, which in view of a possible arrangement of the automatic email as knowledge declaration under § 313i sentence 1 No.. 3 BGB was problematic. For any event, the defendant has successfully challenged a possible declaration of intent. "Cancel" By the word of the defendant had clearly expressed, that she wanted to not hold on to the Explained. By referring to a "system error" had become clear, that it was not a resignation. For the applicant had obviously been a reasonable appraisal, that was the reason for the cancellation of blatantly inadequate price. The right to challenge consisted in the declaration error, being able to stand there, whether there had been an incorrect entry or an error in the technical transmission. Immaterial, also, that the error in the invitatio ad referendum was carried out, since he had continued in the declaration of acceptance directed at the conclusion of the contract. Even if one were to assume, that the erroneous pricing only was a miscalculation as unremarkable motive mistake to reason, the insistence of the applicant to contract execution would abuse of rights.
31
Because of the further first instance claim, it is in accordance with § 540 Abs. 1 No.. 1 ZPO in addition to the factual findings of the Landgericht's judgment, the correspondence between the parties briefs together with their equipment as well as the minutes of meetings referred, insofar as these do not contradict the above findings.
32
Against their counsel on 17.03.2015 undelivered judgment on the applicant 07.04.2015 appealed, they on Monday, the 18.05.2015 has founded and with which they pursued their desire first instance in full. They repeated and expanded their submissions at first instance. Contrary to the opinion of the District Court that the defendant the contract is not effective according to § 119 Abs. 1 BGB challenged. The email can not be interpreted as a declaration of avoidance, because they will not let recognize, that the exemption from contract, the "Cancel" in the word is one expression, done because of a lack of will. With the declaration "due to a system failure" bring the defendant just no lack of will to express, as it should have just been a unwilling controlled system error. The after § 133 BGB performed an interpretation could lead to three different results, it may withdraw from, present a revocation or contestation. According to § 305c Abs. 2 BGB go this when delivered by means of modern communication technology Declaration to the detriment of the defendant. The adoption of a declaration error was not evident. The defendant did not put forward to, as it should have come to the incorrect pricing. Rather, it is contrary to the opinion of the District Court to a calculation error, of not qualifying as unremarkable motive mistake to challenge. The adoption of Rechtsmissbräuchlichkeit have the district court contrary to § 313 Abs. 3 ZPO unfounded, going so far made to the first-instance argument.
33
The order sought,
34
the most 17.03.2015 announced judgment of the Landgericht Wuppertal, business number 11 The 37/15, amend and
35
1.
36
order the defendant, to them 10 M… G 4300 IS generators train to train against payment of 285,60 € surrendered;
37
2.
38
determine, that the defendant is in default;
39
3.
40
order the defendant, to the applicant extrajudicial legal fees in the amount of 70,20 to pay €;
41
the alternative: the most 17.03.2015 announced judgment of the Landgericht Wuppertal, business number 11 The 37/15, set aside and the proceedings under § 538 Abs. 2 No.. 1 referred back to the Landgericht Wuppertal ZPO.
42
The defendant,
43
rejected the appeal.
44
They defended the trial submissions under revision and consolidation of the first-instance argument. The statement of the defendant of 02.02.2014 could not as the exercise of withdrawal- be interpreted or right of withdrawal, there already was not visible, whence such could arise. Contrary to what the appeal is the email from 02.02.2014 not according to § 305c Abs. 2 treat BGB, since it did not involve an automated declaration of intent, but a personal email of managing the defendant. is to point to statement error, that the applicant had the first instance presentation of erroneous online entry never denied. The interpretation given by the Landgericht justification for adoption of Rechtsmissbräuchlichkeit does not violate § 313 Abs. 3 Code of Civil Procedure, because the district court factually refer to the blatantly at low price and in law on a reference of a comment.
45
The Senate has pointed out at the hearing, that the disputed generators evidenced simple search queries on the Internet currently at a price of more than 3.300 Euro bis ca. 4.500 Euro traded per piece.
46
For further details of the second instance arguments Referring to the statements of the parties together with their systems.
47
II.
48
The admissible appeal is unfounded.
49
A.
50
The appeal is admissible, particular form- been and filed within time limit and justified pursuant to §§ 517, 519, 520, 222 Abs. 2 Code of Civil Procedure.
51
B.
52
The appeal shall in case no success. The contested decision is the result neither of an infringement within the meaning of § 546 ZPO nor warrant under § 529 Abs. 1 ZPO criteria taken into consideration facts a different decision (§ 513 Code of Civil Procedure).
53
1.
54
One of the applicant's surrender and transfer of ownership of the generators according to § 433 Abs. 1 Set 1 BGB does not exist. Although the Senate is with the applicant considers, that a contract between the parties is initially come about. The arising therefrom claim the applicant is, however, according to § 242 BGB unenforceable.
55
a)
56
Contrary to the defendant and the doubts expressed by the district court, the parties to the 01.02.2014 a contract for the purchase of 10 Generators at a price of 285,60 € closed.
57
A contract is by two matching declarations, Offer and acceptance into existence. The offering or. the application has the unilateral directed at the conclusion of the contract, receiving needy declaration of intent, contains the subject and content of the contract as determined or determinable, that adoption can take place by a simple "yes", § 145 BGB (Palandt / Ellenberger, BGB, 75. ed. 2016, § 145 Rn. 1). delineate these, the mere invitation to treat (invitation to offer), the more the will to final legal bond is absent (Palandt / Ellenberger, a.a.O., Rn. 2). The assumption is based on the offer, usually also receiving needy declaration of intent of the other part, which consists in the unconditional affirmation of the offer (Palandt / Ellenberger, a.a.O., § 147 Rn. 1).
58
aa)
59
On this basis, the "offer" of generators via the online shop of the defendant invitation to treat (invitation to offer).
60
Where an offer is addressed to a specific person, but to the general public, so it is often due to lack of will to contractual binding only to the solicitation of contract proposals, the purpose of which is, the potential partner about your own goods- to inform or power supply and to bring the basic contract readiness to (Erman / Armbruster, BGB, 14. Edition 2014, § 145 Rn. 4). Whether a binding offer according to § 145 BGB or invitatio ad referendum exists, should be determined by interpretation (BGH judgment of 05.12.2012, I ZR 146/11, MDR 2013, 1300; BGH judgment of 05.12.2012, I ZR 88/11, MMR 2013, 586), for it does not depend on the inner will of the declarant, but it, as his statement could be understood by the recipient horizon ago and could (Staudinger / Bork, BGB, revision 2015, § 145 Rn. 3 m.w.N.). But are all from the perspective of an objective observer recognizable circumstances zoom pull, even with the use of automated observations by electronic means of communication (BGH, Judgment of 16.10.2012, X ZR 37/12, References omitted 195, 126). Has to be considered especially, that someone, who turns to the wider audience, must often reserved, before a binding contract to check their own performance and the ability to pay of the enemy, so that it is lacking in such cases, often the immediate legal binding will (Staudinger / Bork, a.a.O. Rn. 4; Flume II § 35 I, 1, 637). For goods- is and service offerings of a businessman especially in view of the limited capacity in principle an offer within the meaning of § 145 denying BGB by the representation of the possible services and products in the online shop (Erman / Armbruster, a.a.O. § 145 Rn. 4).
61
The information provided by the defendant in its online store, who turn to an unknown group of people, merely provide the goods and prices are, can therefore search for the interested from the assortment and in turn make a purchase offer. This is particularly true in view, that the defendant, the number of possible orders and the economic situation of each purchaser can not estimate when peddling their goods over the internet, so it must be the recipient of Horizon ago, that they conclude the contract after receiving a concrete offer of the Purchaser reserves.
62
bb)
63
By the director of the applicant on 01.01.2014 against 20:48 Watch the orders of 10 Piece and its data typed into the online ordering system of the defendant and this order or confirmed. absandte, he gave the applicant an offer to purchase 10 Generators at a price of each 24,00 € plus VAT, a total of 285,60 € from. The explanatory power of this declaration of intent is clear and his knowledge about, that the defendant had received an incorrect price and was not ready for her true will, to contract at this price, for the interpretation of its declaration of intent as a binding contract offer irrelevant.
64
cc)
65
This request of the claimant, the defendant adopted the same day by automatic email. This results in an interpretation of the statement contained in the email.
66
After §§ 133, 157 BGB is to explore, in interpreting a contractual individual wish of the real intention, and it is important not only to the inner will of the declarant, but to be determined by normative interpretation objective explanatory value of his behavior. Whereas it is understood from the text of the statement (vgl. BGH, Judgment of 19.01.2000, VIII ZR 275/98, , A-RR 2000, 1002, Rn. 20, m.w.N.; BGH, Judgment of 17.12.2009, VII ZR 172/08, NJW 2010, 1592, 1594; BGH, judgment of 27.01.2010, VIII ZR 58/09, NJW 2010, 2422, 2425; MüKoBGB/Busche, 6. Edition 2012, § 133 Rn. 57 ff.; Palandt / Ellenberger, BGB, 75. ed. 2016, § 133, Rn. 14) and accordingly to consider primarily this and it objectively to be removed declared intention of the parties (vgl. BGH, Judgment of 27.01.2010, VIII ZR 58/09, a.a.O., m.w.N.). Reception whose declarations are in principle to be interpreted as, as they had to understand the statement recipient in good faith and taking into account the prevailing practice. It still remains the objective pursued by the agreement purpose, involve the interests of the parties and the other outside the declaration act underlying circumstances in the interpretation, in that they make a conclusion as to the meaning of the Declaration (vgl. BGH, Judgment of 16.11.2007, The ZR 208/06, , A-RR 2008, 683, Rn. 7, m.w.N).
67
These design principles apply, if be used in the delivery and receipt of declarations of intent electronic means of communication (BGH judgment of 16.10.2012, X ZR 37/12, References omitted 195, 126). This is supported by the legal regulation of the obligations in electronic commerce. § 312i Abs. 1 No.. 3 BGB, in the event, that a contract is to be concluded using electronic means of communication, ago, that the operator has to confirm the receipt of the order electronically. This confirmation of the order does generally a pure knowledge- and no declaration of intent is (Staudinger/Thüsing, BGB, neubearb. 2005, § 312e (A.f.) Rn. 46; MüKoBGB / Wendehorst, 7. ed. 2016, § 312g Rn. 95; Erman/Saenger, BGB, 14. ed. 2014, § 312g Rn. 17). Nevertheless, is not excluded, the entrepreneur this knowledge statement with a declaration of intent, be it with the assumption, be it with the rejection of the offer, combines (Staudinger/Mansel, BGB, revision 2012, § 312g (A.f.) Rn. 47 f.). The nature of the Declaration is in accordance with the general rules in §§ 133, 157 to determine BGB after objective receiver horizon (BGH judgment of 16.10.2012, X ZR 37/12, a.a.O.; MüKoBGB / Wendehorst, a.a.O. Rn. 94; Staudinger/Thüsing a.a.O. § 312g (A.f.) Rn. 47). Therefore, an automated declaration comes basically as acceptance of the offer into consideration, if it is not just about the acknowledgment of receipt of an order pursuant to § 312i Abs. 1 No.. 3 BGB is, but with their unconditional execution of the order is announced (BGH, Judgment of 16.10.2012, X ZR 37/12, a.a.O.; MüKoBGB/Busche, a.a.O., § 147 Rn. 4). Similarly, the acceptance can be declared implicitly also in electronic commerce, so if the desired performance is effected or otherwise be made to the application corresponding actions (Erman / Armbruster, a.a.O. § 147 Rn. 2). The position taken by the defendant,, that reach a given automated by means of modern communication technology per se explanation of doubts rate applicable for general business at the expense of the user (vgl. this Palandt / Ellenberger, a.a.O., Rn. 23, 26a; Paefgen JuS 1988, 592, 595 at that BTX-service) is therefore rejected. A distinction must be sure the questions are, whether a concrete automated created Statement Terms contains or may be construed as a declaration addressed to an indefinite number of persons declaration rather by objective principles (vgl. Staudinger/Singer, a.a.O., § 133 Rn. 72).
68
These design principles are not only for the interpretation of the contents of a declaration of intent of meaning, zoom pull but also for the question, whether there is a declaration of intent (BGH, Judgment of 22.06.1956, I ZR 198/74, References omitted 21, 102, 106; Palandt / Ellenberger, a.a.O. Rn. 3). It is especially the demarcation of acceptance of the contract by the by the entrepreneur in online trading according to § 312g. 1 Set 1 No.. 3 BGB in to 13.06.2014 amended or. § 312i Abs. 1 Set 1 No.. 3 BGB today's version due acknowledgment of receipt of order sometimes difficult (Staudinger/Thüsing, neubearb. 2012, § 312g BGB (A.f.), Rn. 47 ff.; Bodenstedt MMR 2004, 719). Notwithstanding the individual case law extensively illustrated by Thüsing is always starting with the above principles of interpretation.
69
Measured against this objective is the wording of the votes by the defendant by means of automated email statement over here (also) to start from a declaration of intent in terms of acceptance of the contract, and not merely from a knowledge statement in the sense of a confirmation of the order.
70
For the design as acceptance rather than mere acknowledgment speaks the clear wording of the heading "Auftragssbestätigung", extending from the full only from the applicant by letter 05.03.2015 submitted investment yields. For this reason alone, according to the understanding of the intelligent and honest Average customer weighing the interests of the parties normally involved assume a consenting declaration of intent. For it makes clear, that there exists more, as merely an acknowledgment of receipt of an order. "Order Confirmation" is a legal term, generally understood as the acceptance of a contract offer (jurisPK-BGB/Backmann, 7. ed. 2014, § 146 Rn. 67; BeckOK-BGB/Eckert, 38. Ed. 2016, § 146 Rn. 13; MüKoBGB/Busche, 7. ed. 2015, § 147 Rn. 15; Canaris, HandelsR, 24. ed. 2006, § 23 Rn. 49 f.). This is also the prevailing opinion, particularly in the commercial legal relations - the issue raised by the listing of the specific product Average customer is entrepreneur. That regardless of the name of a letter as an "order confirmation" on the circumstances, in particular the content of the letter, also that goes beyond a mere acceptance of contract commercial letter of confirmation can be understood (vgl. BGH, Judgment of 07.10.1971, VII ZR 177/69, Juris Rn. 10), does not preclude the interpretation found, because further legal effects than an acceptance of the contract are not at issue.
71
Also speaking the further content of the Declaration here for a contract acceptance, in particular, the formula used to a summary of the order after "Thank you for your order. We will process your order immediately, "says this. The receiver understands this formulation, taking into account fair and traditional meaning, that a contract has come to the summarized reproduced related conditions and is now carried out by the seller (so for identical, comparable or even "weaker" formulations BGH, Judgment of 26.01.2005, VIII ZR 79/04, Juris Rn. 4 and 12; OLG Frankfurt, Judgment of 20.11.2002, 9 You 94/02, Juris Rn. 25; LG Köln, Judgment of 16.04.2003, 9 S 289/02, Juris Rn. 5; Staudinger/Thüsing, a.a.O., m.w.N. jurisprudence and other lower courts; A.The. OLG Nuremberg, Decision of 10.06.2009, 14 You 622/09, Juris Rn. 21; OLG Oldenburg, Decisions of 12.06.2008 and 04.07.2008, 5 You 92/08, cited by Thüsing supra). Even the general understanding of language suggests, that the promise, immediately or soon to begin processing the order, is understood, than start the entrepreneur now with the execution of the contract and not to go, that the contract will initially tested (vgl. Staudinger/Thüsing, a.a.O. Rn. 48).
72
b)
73
The contract is contrary to the opinion of the District Court is not in accordance with § 142 Abs. 1 BGB void. Although the defendant has challenged the contract because of a lack of will, but can not be determined the existence of a dispute appeal.
74
aa)
75
The in the email from 02.02.2014 Declaration contained "due to a system failure, we can make your online order from 01.02.2014 not execute and cancel this contract, "is a declaration of rescission in accordance with § 143 Abs. 1 BGB. Such notice is received whose declaration of intent, that reveals, that the party does not want to leave the business because of a lack of will apply, the word "challenge" need not be used (Palandt / Ellenberger, BGB. 75. ed. 2016, § 143 Rn. 2, 3). The will, not wanting to accept the deal, is doing "cancel" with the word brought sufficiently expressed, which also does not draw the applicant in doubt. Given the director of the applicant disputed circumstances known to an erroneous pricing far below the market value, does the phrase "due to a system malfunction" at least for these sufficiently recognize, that the defendant wanted to solve because of faulty pricing the contract. But this interpretation is also a balance of interests of the parties. Coming into consideration as single in principle design right of defendants, to withdraw from the contract, came here a challenge into consideration. The conditions for application of a withdrawal, Dismissal- or right of withdrawal lay on the side of the defendant not seen before, so that it corresponded to the interests of the defendant, to declare a challenge. This interest was evident for the applicant and was also positively recognized by it. In view of the fact, that she wanted to sneak a non-market contract with recognized too low pricing, is their interest, hold on to the contract as a whole, not prevent.
76
Contrary to what the applicant is in the email from 02.02.2014 neither an automated declaration, nor would such a rule here the ambiguity of the law of the terms and conditions (§ 305c Abs. 2 BGB) apply. Rather, it is evidenced by the indisputable text message to an individual by the Executive Director of the defendant, Woman ... D ..., drafted statement, which the director of the applicant, Mr S ... is addressed. The fact, that were used for the transmission of the declaration electronic communications, makes no difference for the interpretation. Even if it is automated but a, have done thus a result of the pre-set by the user parameters caused by the reaction of a computer program declaration, this would not be subject to the ambiguity rule. For the mere fact, that a statement is created automatically, While defining a multiple use near, makes them but not per se to a general business condition. Such here is not on that account before, since it is not a condition of contract, but is a unilateral declaration of the user (vgl. Palandt / Grüneberg, a.a.O., § 305 Rn. 6). Finally, the interpretation of the Declaration gives, as set out, no ambiguity.
77
bb)
78
However, it lacks a ground of avoidance. A entitling to challenge errors pursuant to §§ 119, 120 BGB can not be determined. Such can result from this, that with respect to the invitatio ad referendum in the online shop of the defendants present, fort seemed relevant error in the declaration of acceptance directed at the conclusion of the contract (vgl. BGH, Judgment of 26.01.2005, VIII ZR 79/04, Juris Rn. 15).
79
(1)
80
Although it is common, that the outer declaration offense of acceptance and agreement to the contract will the defendant fell apart here unintentionally. Said the online store unit price of a generator of 24,00 net euro, also adopted in the Declaration of Acceptance, corresponded clearly not the intention of the defendant. Such generators are currently on the Internet at a price of more than 3.300 Euro bis ca. 4.500 Euro traded, what is visible and therefore evident through a simple search, § 291 Code of Civil Procedure. Therefore also urges, that the room of the defendant purchase price of more than 2.600 Euro holds. Economically, it makes no sense, Machines of this type for 24,00 €, which is less than 1% the usual price, to sell. Also, the applicant can not rely on, that there is a special- could have acted or loss leader. Neither she claims, that it was indeed so, nor are circumstances presented or from the documents submitted seen, featuring the indicated in the online shop of the defendant price as Special. A special- or bait and switch does however regularly only makes sense, when the particularly low price is also particularly emphasized for advertising purposes.
81
(2)
82
Lack immediate tangible presentation can not be ascertained, however,, that the unintentional misstatement based on a right end to dispute errors. After the legal concept of right to avoid is just not any unintentional misstatement entitle to challenge, but only one such, meets the one of the regulated error offenses, where an assessment of the protection of self-determination on the one hand and the law- and traffic safety on the other hand is expressed by limiting the circle of relevant errors (Soergel / Singer, BGB, neubearb. 2012, § 119 Rn. 1 f.).
83
(i)
84
A content error does not exist. After § 119 Abs. 1 BGB, who was in a declaration of intent on their content in error, avoid the contract. When content error of explanatory used Although the explanation mark, he wants to use; it measures this declaration facts but a different meaning (importance, scope) at, as it deserves objectively. This is not the case here.
85
(ii)
86
The here under consideration, to contest entitled explanation mistake under § 119 Abs. 1 BGB can not be determined. When Declaration mistake the declarant chooses unconsciously a false declaration characters. He actually expresses something different, as if to express, z.B. because he expects, prescribes or misappropriates. It is therefore essential errors in the declaration. Such may be in a computer system in the incorrect price entry (BGH, Judgment of 26.01.2005, VIII ZR 79/04, Juris Rn. 14; Palandt / Ellenberger, BGB, 75. ed. 2016, § 119 Rn. 10). Whilst it is the corruption of the correct explanation mark on the way from the declarant to the Declaration receiver equal, which may be in the course of using a computer system, for example, in the change of the input sales price due to an error in data transfer through the remainder beanstandungsfrei ongoing software (BGH, a.a.O.). For there is no difference, whether the declarant prescribes itself or mistyped or if the deviation from the desired statement facts on the other way to the recipient enters. This also follows from § 120 BGB, after which a declaration of intent, which has been transmitted incorrectly by the person or device used for transmission, may be challenged under the same condition as in accordance with § 119 BGB a mistakenly given declaration of intent. Accordingly, § 120 BGB unanimously considered the case of the declaration error, who only receive a separate legal regulation (Palandt / Ellenberger, a.a.O.; Larenz/Wolf, General Part of the Civil Code, 9. Ed, § 36 Rn. 14). same for, if happens a transmission error due to erroneous data transfers, before the declaration of intent has left the area of ​​the declarant (BGH, a.a.O. Rn. 15).
87
That quotation was made here on an incorrect entry of the price in the computer system, is not firmly against the adoption of the Regional Court. The defendant stated purpose only vague, if it were a "faulty Online Input" or. an "electronic input error". The applicant disputed, that the quotation was made unintentionally, without the defendant should set out a mistake in explaining in detail or demonstrated. In this lack of presentation, the Senate has pointed at the hearing, without the applicant has so far presented more extensively. As far as the district court can be left open, if an incorrect input or - claimed by either side - faulty transmission correctly entered data is present, this does not change, there beside (amongst other things) a faulty (automatic) Price calculation comes into consideration.
88
(iii)
89
Unless deviated due to the matching presentation of the parties is an erroneous pricing into consideration, authorized this not as an undercover costing mistake to challenge. When calculation error (calculation error) errs explanatory either a circumstance (weighting factor), he his calculation (calculation) taken as a basis, or he is wrong in the calculation itself. Will be the business opponents in a declaration of intent is merely the result of a calculation known, but not the basis for calculation (internal or. concealed calculation error), so it is only a inconsiderable Scene error; contestation is not possible (BGH, Judgment of 07.07.1998, XI ZR 17/97, References omitted 139, 177, 180 f.; BGH, Judgment of 25.03.2003, XI ZR 2247/02, , A-RR 2003, 921, 923; Erman/Arnold, BGB, 14. ed. 2014, § 119 Rn. 30 m.w.N.). Such can occur when using a computer system, for example by an incorrect calculation of the price (vgl. BGH, Judgment of 07.07.1998, XI ZR 17/97, References omitted 139, 177, Rn. 13).
90
c)
91
Your right is exercised by the applicant not to § 226 BGB (chicane ban) denied. Although it is common ground, that the applicant has detected the error in the pricing and exploit wanted. However, this took place precisely not only in an effort, harming the defendant, but seen primarily to, to gain an advantage even.
92
d)
93
The applicant, however, it is by the in § 242 denied BGB enshrined principle of good faith, to rely on their resulting claim. Because this presents itself as impermissible exercise of rights. The exercise of a right is abusive usually, when the person concerned is legal just by a, then- has acquired or breach of contract (Case group of dishonest acquisition of a legal position, Palandt / Grüneberg, BGB, 75. ed. 2016, § 242 Rn. 42 m.w.N.). For - not to contest qualifying - calculation error is recognized, that it is incompatible with the principles of good faith, if the recipient of statements positively recognizes the faulty Pricing and implementation of the contract is unreasonable for the declarant par (BGH, Judgment of 07.07.1998, X ZR 17/97, References omitted 139, 177, Rn. 24; BGH, Judgment of 30.06.2009, XI ZR 364/08, Juris Rn. 33). From this it is generally derived partly, the deliberate exploitation of a manifestly erroneous Pricing in an online system was an abuse of rights (OLG, Decision of 15.11.2002, 19 The 2631/02, NJW 2003, 367). This view is rejected insofar, as thus cases will be detected due to error declaration incorrect price information (so but probably OLG München, a.a.O.). The precludes, that the issue of positive knowledge of the declaration error by the other party with §§ 122 Abs. 2, 142 Abs. 2 BGB has found a final legal regulation (vgl. BGH, Judgment of 30.06.2009, XI ZR 364/08, Juris Rn. 31). can not accept this view in the fact, that the recognition of erroneous pricing already is sufficient in itself, accept an abuse of rights. After the above-cited case-law of the Bundesgerichtshof furthermore it requires the determination, that the adherence to the contract for the erring is absolutely unacceptable and the relevant circumstances for the other part can be identified (see also Staudinger / Olzen u. Looschelders, BGB, neubearb. 2015, § 242 Rn. 427).
94
It is clear, that the director of the applicant had recognized in the Offer, that the defendant the online system indicated a too low price. Although the applicant denies, that it is the of the Fa. M ... Price communicated to the purchase price of the defendant IN QUESTION. But she disputes neither the further presentation of the defendant, that the market value of the equipment is greater than this sum, still denies, that its director has determined the market price in the period of the order by Google, of as set forth above 3.300 Euro to 4.500 Euro is. Whether he has made it an idea, the displayed, manifest error rate is based on an erroneous entry (Policy error) or an incorrect calculation (Kalkulationsirrtum), is of no relevance.
95
Also, the adherence to the contract - the director of the applicant recognized upon conclusion - for the defendant absolutely unacceptable. For they would generators to less than 1% sale of their market value, which would entail a considerable loss to be even with the adoption of a generous margin.
96
2.
97
The applications seeking to 2 Despite the lack of indication, which the defendant should be in arrears, permissible, as it must be interpreted, that the finding of Annahemeverzuges (§ 293 BGB) is sought with respect to the train-to-train consideration offered. That interpretation is in addition to the customary practice of such application and the absence of evidence for, that the applicant intends to rely on a debtor's default of the defendant with the coveted main power, decisively, that the obvious understanding the wording of a debtor's delay would lead to an inadmissible head of claim. Because of the finding of the commonly referred to as "default" debtor default, (§ 286 BGB) lacks the for § 256 Abs. 1 ZPO required finding interest, because of the debtor's default is not a fixed position capable legal relationship (vgl. BGH, Judgment of 19.04.2000, XII ZR 332/97, Juris Rn. 11) and applies to this also not offered from procedural economy than this criterion, which is recognized for the default of acceptance (vgl. BGH, a.a.O., Rn. 10 m.w.N.). The order also in the application to 2 admissible action is unfounded for lack of an existing claim on the merits.
98
Even litigation attorneys' fees, the applicant does not require the absence of the main claim.
99
C.
100
Die Kostenentscheidung beruht auf § 97 Abs. 1 Code of Civil Procedure. The decision on the provisional enforceability follows from §§ 708 No.. 10, 711 Code of Civil Procedure.
101
One reason for leave to appeal does not exist. The requirements of § 543 Abs. 2 ZPO are not available. Neither does the case of fundamental importance nor the development of the law or the assurance of a uniform law requires a decision of the Court of Appeals.
102
According to § 48 Abs. 1 Set 1 GKG, § 3 ZPO is the dispute for the proceedings before both courts up 35.000,00 set €. Starting from the from the Fa. M… communicated manufacturer selling price to resellers (net 26.420,00 €) and a moderate estimated selling supplement the defendant of ca. 30% resulting in a market value of out demanded generators in the dispute stage to 35.000,00 €. The application to 2 a declaration of default of acceptance comes next no independent, value-importance. There are grounds, modify the first instance dispute fixing of its own motion, § 63 Abs. 3 Set 1 No.. 2 GKG.