Anyone who follows the primary aim as demolition hunters an ebay auction, to be asserted in the case of a premature auction termination compensation claims, is an abuse of rights
BGH judgment of 24. August 2016 – VIII ZR 182/15
The applicant, a civil law, allowed it the son of her manager (below: H.), set up a user account on the internet platform eBay for them.
In January 2012 offered the defendant on eBay a used motorcycle of Yamaha in the way of a ten-day Internet auction with a starting price of 1 € for sale at. H. accepted the offer, wherein a he (Maximal-) Bid of 1.234,57 € gave.
As the defendant, the auction for falsely registered Artikelmerkmale the first day broke, war H. remained the only bidder. Shortly afterward the defendant the motorcycle with corrected information again on eBay.
About half a year later, in July 2012, asked the applicant to defendant, her the bike for the price of 1 to leave €. As he had in the meantime disposed of it otherwise, asked the applicant with the assertion, be the bike 4.900 been worth €, Damages of 4.899 €. Even before service of the application, the applicant took their claims from the made eBay transactions free of charge to H. from.
process History:
The lawsuit has partly succeeded in the first instance. On appeal by the defendant, the district court dismissed the action in; the appointment of the applicant rejecting it.
Here the Court of Appeal of which went out, that the applicant without prejudice to the action carried out before delivery assignment of the claim to H. is entitled, to pursue the assigned claim further (freely determined representative action).
The claim for damages is, however,, as is apparent from the overall circumstances of the case, abuse of rights. Because H. have as “demolition hunter” mainly pursues the objective, to be asserted in the case of a premature auction termination compensation claims. Given the Court of Appeal stated inter alia: But in summer 2011 had H., the time was registered under several own user accounts on eBay, not behind a user account of the applicant “hidden” and eBay bids of 215.000 issued €. He had – every time under applying for legal aid – initiated four trial. Moreover, the applicant – in the assumption, the defendant will dispose of the motorcycle in the meantime otherwise – waited to validate claims more than half a year, until they have finally taken before a court claim.
With the approved by the Appeal Court audit the applicant pursued her remedy sought further.
The decision of the Bundesgerichtshof:
Who among other responsible for the Sales Law VIII. Civil Division of the Federal Court held, that the action for lack of locus standi of the applicant has already dismissed as inadmissible.
According to the jurisprudence of the Federal Court is a freely determined representative action – ie the legal transaction authorization for prosecution of a foreign law on its own behalf – always also own legitimate interest of the Authorized to the prosecution advance. Such is given, if the decision affects their own rights, and may also be of an economic nature. In the present case, however, lacks a legally legitimate interest of the applicant in the litigation. While it can also be the seller of a claim in order to avoid its own punitive own legitimate interest have, to make the assigned claim in court. In the present case, the applicant has its rights under the eBay business but not sold, but free of charge to H. transfer.
In the Court of Appeal regarded as crucial aspect of abuse of rights therefore it did not come to. The Senate, however, has expressed, that given the accumulation of meaningful evidence an error of law the Court of Appeal was not apparent.
Courts:
LG Görlitz – Judgment of 29. July 2015 – 2 S 213/14
AG Bautzen – Judgment of 21. November 2014 – 20 C 701/12
