Local Court of Cologne, decision of 28 April 2014, file number 142 C 354/13
The local court of Cologne recently ruled that it was not sufficient if the operator of an online shop labels the order button with "purchase now" in order to comply with the requirements of the so-called "button solution" set forth in sec. 312j para. 3 of the German Civil Code. This provision requires that the consumer is clearly and unambiguously informed about his obligation to pay when placing an order. According to the local court of Cologne "purchase now" is not unambiguous as there are scenarios where a consumer can enter into a purchase agreement without assuming an immediate obligation to pay a purchase price, e.g. in cases of a sale on trial. The prevailing legal literature holds a different view and, in fact, it can only be hoped that other courts will not follow the local court of Cologne in this respect. The prevailing practice of cease-and-desist letters in German e-commerce is already bad enough. Isn't it the characteristic feature of a purchase agreement that the purchaser assumes the obligation to pay the purchase price (yes, that is a rhetorical question)? The court of Cologne's reference to sales on trial is not particularly convincing, as in a case of a sale made on account there is also no immediate obligation to pay the purchase price. However, for reasons of utmost precaution one should consider to mark the order button with the words "Order and Pay" (the text foreseen in sec. 312j para. 3 German Civil Code) or with "Purchase with the Assumption to Pay".
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