Contracts are concluded through two agreed declarations of intent. So only if the buyer and seller both say “yes”. As a rule, confirmation of receipt of the order does not mean a “yes” from the seller. However, technical errors are often made here, which lead to an unwanted, hasty contract being concluded.
What is it about?
Ordering online is like getting married: only if both say “yes” will the contract be concluded.
In e-commerce, this usually happens in such a way that the buyer submits an offer to conclude a purchase contract by placing an order in the retailer’s shop, since the retailer invites him to do so through his online offers.
The retailer can then accept this customer offer, for example through an order confirmation, request for payment or by shipping the goods, so that a contract is concluded.
This purchase agreement obliges the seller to hand over and transfer ownership of the goods sold to the buyer. The buyer undertakes to pay the purchase price and any agreed shipping costs and to accept the purchased goods.
If the buyer uses an instant payment method for his order, such as Paypal or Amazon Pay, the legal situation is different.
In such a case, the seller must accept the customer offer in advance, i.e. in anticipation, in the event that payment is made if he wants to act in a legally secure manner. This is because paying the buyer on a non-existent debt (due to a purchase contract that did not yet exist when the payment was made) would put the buyer at an unreasonable disadvantage and corresponding regulations in general terms and conditions etc., which only provide for the conclusion of a contract later, would be vulnerable and punishable .
Consequence: In such cases, if the seller works with the correct terms and conditions, he is contractually bound immediately from the moment the immediate payment is made. A separate order confirmation or shipping of the goods is then no longer necessary for the conclusion of the contract. The following statements regarding the design of the order confirmation are then no longer relevant.
Other rules may also apply when selling via platforms. For example, offers posted on eBay.de are directly binding offers and not just invitations to submit offers by buyers. If the customer places the order on eBay.de, a purchase contract is immediately concluded. There is no longer any need for a separate declaration of intent from the seller.
Normally, such a contract conclusion is positive for the seller.
But there are situations in which sellers are not happy about a contract being concluded. For example, if there are problems with the availability of the goods or the dealer has made a price mistake to their disadvantage, sellers are happy if there is no contractual commitment yet.
Order confirmations are generally not acceptance
According to the regulations of According to § 312i Paragraph 1 No. 3 BGB, online retailers are obliged to immediately confirm receipt of the customer’s order electronically.
This regulation primarily serves to give the customer the security that their order has been received by the seller and that they can check it again for errors.
In practice, this is implemented for orders in one’s own online shop by the shop system automatically sending an email to the customer after the order has been received, which repeats the content of the order placed and informs the customer about the next steps, for example to the extent that he/she can… If his offer is accepted, an order confirmation or information about the dispatch of the goods will be received.
The mere confirmation of receipt of the order or the reproduction of the content of the order placed does not constitute acceptance of the customer’s offer, so that such a confirmation of receipt – if it is worded correctly in legal terms – does not yet lead to the conclusion of a contract.
In practice, this is also what the retailer wants, as he usually wants to check the order again and ensure the availability of the ordered goods before he binds himself contractually.
Common mistakes in practice
However, it is not uncommon for retailers to make content-related errors when formulating the order confirmation email, which means that acceptance of the customer’s offer can already be seen in this email and a contract is therefore concluded at this early stage.
This can be done through a hasty, explicit acceptance.
Wordings like
“We thank you for your order, which we are happy to accept.”
“Thank you for your purchase, which we are happy to confirm.”
“We have received your order and are confirming the execution.”
If you have no place in an order confirmation, the retailer doesn’t want to commit yourself too quickly.
But an implied acceptance also occurs again and again, for example by pointing out in the email that an actual action has taken place that suggests that the customer offer has already been accepted.
Wording that gives the customer the impression that no further steps are required to receive the goods should be avoided. Wordings such as:
“Thank you for your order. We are now shipping the goods.”
“Thanks for your order. We are now preparing to ship the ordered goods.”
“We will now pass your order on to the shipping department to pack and ship the goods.”
These instructions can only be understood by the customer to mean that his offer has already been accepted and legally lead to an upstream contract conclusion by sending the confirmation of receipt.
Finally, care must also be taken to ensure that the customer is not asked to pay with the order confirmation.
For example, anyone who points out in their order confirmation that the customer should pay for their advance order by transferring it to the specified bank account immediately brings about the conclusion of a contract.
Conclusion
In the online shop, a clearly worded order confirmation email does not lead to an acceptance of the customer’s offer and therefore not to a contract being concluded (which is probably what most retailers want in order to avoid problems with price errors or unavailability of the goods).
If the dealer then discovers a corresponding problem, he can reject the customer’s offer and is not contractually bound. Exception: The contract was already concluded by using an instant payment method such as Paypal or Amazon Pay. In such a constellation, a separate (order) confirmation is no longer necessary for the conclusion of the contract in order for the contract to be concluded.
But: In practice, wording errors in order confirmation emails often lead to a contract being concluded upon receipt of such an email (which is probably undesirable by most retailers).
Because: In such a case, if there is a price error, the only option left is to challenge the error in order to be able to withdraw from the contract.
Have you made a mistake about the price of the goods you are selling and incorrectly stated it too low in the shop, perhaps because you slipped the decimal point?
In most cases, damage can be avoided by immediately and correctly challenging the error. However, there are a few formalities that need to be taken into account.
In the event of a lack of product availability, however, there is no “exit” for the retailer and he has to hope that the customer will show goodwill and not insist on his order. Otherwise, the retailer will have to procure the goods elsewhere and possibly more expensively in order to fulfill his contractual obligations.
It is therefore advisable for all online retailers to take a look at what their shop system includes in the order confirmation emails. Statements that represent an express acceptance of the customer’s offer must be avoided, as should statements that suggest an implied acceptance.
Would you like professional, legal support for your online sales? We are happy to support you with our protection packages.
Did you already know that our data protection, starter and premium protection packages can generally be canceled on a monthly basis (exception: when ordering, you select the “loyalty discount” option for 2 free months with a 12-month minimum contract term)?
Why? Because the IT law firm wants to impress with quality and performance and does not want to “gag” its clients with long minimum contract terms with automatic extensions of one year if they do not cancel.
And: Every now and then, the dealers’ new online venture unfortunately fails. The federal government should then not oblige retailers to become legal service providers for months or even years.
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