In many cases, the right of withdrawal in online commerce stipulates that contracts can be revoked within 14 days of receipt of the goods without a separate reason and that the products received can be returned. The purchase price must then be refunded by the online retailer.
Exception to the right of withdrawal for hygiene articles
However, there are some exceptions to this, which some retailers like to invoke (and thus save the return and, if applicable, reimbursement of return costs). For example, § 312g para. 2 No. 3 of the German Civil Code (BGB) stipulates that, as an exception, there is no right of withdrawal for contracts “for the supply of sealed goods which are not suitable for return for reasons of health protection or hygiene if their seal has been removed after delivery“.
Reimbursement of purchase price and return costs
This exception was already invoked in 2014 by an online retailer whose customer wanted to return an ordered mattress following a corresponding withdrawal. After the online retailer refused to take it back (and collect it), the customer arranged transportation himself. In the case to be decided by the BGH, he now demanded repayment of the purchase price and reimbursement of the return costs totaling €1,190.11 (BGH, judgement of 3 July 2019, case no. VIII ZR 194/16).
ECJ: Mattresses are like clothing
The BGH had already referred the question of whether a mattress – in accordance with the EU Consumer Rights Directive (Directive 2011/83/EU) – falls under this exception to the right of withdrawal to the European Court of Justice (ECJ). At the beginning of the year, the ECJ ruled that mattresses were more similar to an item of clothing and therefore a category of goods for which a return after fitting is expressly provided for (ECJ, judgment of 27.03.2019, ref.: C-681/17). Both can be cleaned or disinfected after direct contact with the human body – as is common practice in hotels, for example.
Purchase price and return costs must be refunded
The highest German civil court has now agreed with this view and decided the case in favor of the consumer. The exception to the right of withdrawal does not apply to mattresses – they are not hygiene articles within the meaning of the law. The online retailer should therefore not have refused to take back and refund the goods and must now do so or reimburse the transportation costs incurred.