eBay - Seller refuses delivery
October 4, 2009 | 20,00 EUR | answered by Andreas Scholz
Dear Sir or Madam,
I recently won an eBay auction for a platinum coin with a face value of 100 Estonian Crowns (equivalent to 6.39 Euros) for a price of 290 Euros plus 10 Euros shipping costs. The process was as follows: The coin was listed for sale by the seller (registered on eBay as a commercial seller) with a buy-it-now price of 700 Euros. Considering the pure material value of around 250 Euros for the nearly 8 gram heavy coin made of pure platinum and without knowledge of its collector's value, I took advantage of the seller's option to make a counteroffer in that same amount. Shortly afterwards, I received a counteroffer from the seller for 290 Euros, which I accepted believing it to be a fair price. About an hour after the purchase, I received an email from the seller in which he claimed a mistake in explanation under §119 BGB and declared the purchase contract concluded on eBay as void under §142 BGB. However, he did not inform me of the reason for his mistake in this email. It was only a day later, after I had asked him twice by email to explain his alleged mistake, that he replied that this coin was worth much more (without specifying a value) and that he simply made a typing error. Instead of 290 Euros, he wanted to make a counteroffer of 590 Euros. My question to you now is whether the purchase contract is actually invalid because of this.
Yours faithfully, [Your Name]
Dear inquirer,
in principle, a challenge due to a mistake in declaration according to § 119 BGB is also possible in your case.
If you insist on the fulfillment of the purchase agreement at the price of 290 euros, you would have the option to bring about the handover and transfer of the coin through legal means, if the seller continues to insist on the invalidity due to challenge.
It would then need to be clarified by the court whether the seller can assert the challenge in your case. It can be initially stated that a mistake regarding the value of the item is generally irrelevant, therefore a challenge would not be justified.
Regarding the typographical error, things are less clear. Generally, promising or misspelling belongs to the so-called mistake in the declaration act. Such a mistake, if indeed present, would be relevant, leading to the nullity of the transaction. It would indeed be a question of the specific case whether the court believes the seller simply made a mistake in writing.
Nevertheless, you would have a claim for damages against the seller according to § 122 BGB. Due to this provision, for example, you would have a claim for damages against the seller if someone else had already offered to buy the coin before the declaration of challenge. The difference between the purchase price and the resale price could then be recovered from the seller. Given the fact that you became aware of the challenge email just an hour after the conclusion of the contract, this claim is not tactically usable for you.
In conclusion, it would lead to a legal dispute if you insist on fulfillment and the seller insists on nullity. You would then have to file a lawsuit for the return of the coin, while the seller would likely assert the challenge in the proceedings. The court would then examine whether the statement that the seller made a typographical error can indeed be believed. This is a case-by-case question and therefore a definite prediction cannot be given in a response on this platform.
Nevertheless, I hope to have provided you with a helpful overview of the legal situation. If you have any uncertainties, feel free to ask.
Best regards,
Andreas Scholz, Attorney
