GER: Online Retailing – Smartphones with Free Gifts

Jul 19, 2024 Benn-Ibler Rechtsanwälte

In online retailing, a purchase contract for the main product is deemed to have been concluded when the seller sends a free gift together with the main product order by the customer. This has been decided by the Higher Regional Court of Frankfurt am Main. The rule applies even if the seller has previously mispriced their product. The smartphones in the case at hand changed hands for EUR 92 instead of EUR 928.

The plaintiff is suing the defendant for the delivery and transfer of ownership of nine smartphones. The defendant operates an online shop for an electronics company. According to the company’s GT&C, an order placed by a customer by clicking on the ‘Buy Now’ button constitutes a binding offer. The order confirmation the customers are then sent (and the plaintiff did receive) however does not constitute acceptance of the order by the seller. A sales contract is only then legally concluded when the company dispatches the ordered product(s) to the buyers and confirms this fact with a dispatch confirmation. The contract only applies to the products confirmed or delivered in the dispatch confirmation.

Due to a pricing error, the defendant had offered smartphones for EUR 92 instead of the recommended retail price of EUR 1099. At the same time, the defendant offered headphones as a free gift with each order. The plaintiff ordered nine smartphones and four free headphones in three separate orders and paid the purchase price directly to the defendant.

On the same day as the order was placed, the defendant changed the price to EUR 928. Two days after the order was placed, the defendant sent the headphones to the plaintiff and informed him of this fact by email. Just under two weeks later, the order was cancelled, citing a serious pricing error. The plaintiff then sued for delivery and transfer of ownership of the smartphones.

The Higher Regional Court ruled as follows:

In online retailing, the sending of a free gift, the delivery of which is conditional on the conclusion of a contract for the sale of a main product constitutes acceptance of the offer to conclude a contract for the sale of the main product that is yet to be sent. This rule applies even where there was a pricing error. There was an inextricable link between the purchase of the smartphone and the sending of the headphones, since the free sending of the headphones required the effective conclusion of a contract for the main product.

Press release, OLG Frankfurt a. M. No. 38/2024 on 9 U 11/23 (18 April 2024)