Consumers generally have a legal right of withdrawal from contracts concluded at a distance. This right of withdrawal must be exercised by making a corresponding declaration to the entrepreneur. But what applies if the person making the declaration cannot be clearly identified by the entrepreneur, for example because he used a different email address for the cancellation declaration than when he placed the order? Can the entrepreneur simply ignore or even reject the revocation in such cases? We will address this question in the following article.
Legal requirements for a declaration of withdrawal
If the consumer has a statutory right of withdrawal, the withdrawal must be made in accordance with § 355 Para. 1 BGB must be made by declaration to the entrepreneur. The declaration must clearly state the consumer’s decision to withdraw from the contract. The revocation has no justification.
In the case of distance selling contracts, the revocation is not tied to a specific form, so it can be declared by the consumer verbally (by telephone), in writing or in text form (e.g. by email). Furthermore, in accordance with Section 356 Paragraph 1 of the German Civil Code (BGB), the entrepreneur can grant the consumer the opportunity to submit the model cancellation form in accordance with Appendix 2 to Article 246a, Section 1 Paragraph 2 Sentence 1 Number 1 of the Introductory Act to the Civil Code or another clear declaration of withdrawal on the entrepreneur’s website to fill out and submit. The general principles for legal declarations of intent apply. The declaration must then be formulated with sufficient clarity, particularly in terms of content, and it must be sent to the (correct) recipient.
In addition, the declaration must also be attributable to the contractual partner. It should be noted that a declaration of withdrawal via distance selling is not a highly personal legal transaction. The revocation therefore does not necessarily have to be declared personally by the consumer. Instead, he could, if necessary, be represented by a third party, provided he has effectively granted them the corresponding power of representation. For persons who are incapacitated or have limited legal capacity (e.g. minors), the revocation may have to be declared by the legal representative (e.g. guardian or legal guardian) in order for it to be effective.
Contractual tightening of formal requirements is not permitted
The formal requirements for a declaration of withdrawal in distance selling provided for by law cannot be effectively tightened by contract to the detriment of the consumer. If the entrepreneur uses a cancellation policy or general terms and conditions when concluding the contract, which stipulate that the cancellation must be made in writing or in text form, this represents an unreasonable disadvantage for the contractual partner, since the cancellation can also be declared verbally in distance selling. In any case, a corresponding regulation would be appropriate § 307 paragraph 2 BGB invalid.
In addition, in such a case, the entrepreneur would be violating his legal obligation to provide information in accordance with Section 312d Paragraph 1 BGB in conjunction with. 246a § 1 Paragraph 2 No. 1, according to which he must inform the consumer, among other things, about the conditions, the deadlines and the procedure for exercising the right of withdrawal in accordance with § 355 Paragraph 1 of the Civil Code.
Blanket rejection is problematic because the sender cannot be identified
As already discussed, the revocation does not necessarily have to be declared personally by the contractual partner. However, the declaration of revocation must be attributable to him. This can prove difficult in practice if the contractual partner cannot be clearly identified, for example because he uses a different email address for the cancellation notice sent by email than when he placed the order. In this case, the entrepreneur cannot simply assume that the declaration of revocation actually comes from his contractual partner or is attributable to him.
On the other hand, the law does not require the consumer to use or provide the same sender or email address as when placing their order in order to withdraw. In addition, the law even allows a revocation declared over the telephone, where the entrepreneur cannot usually easily determine whether the person making the declaration is identical to his contractual partner.
Ultimately, in such cases, it must be determined according to the general rules of the burden of proof whether there is actually an effective revocation or not. In case of doubt, the consumer must prove that he has effectively withdrawn his contractual declaration. On the other hand, the entrepreneur must, as part of his contractual duty of care, seriously check and, if necessary, determine whether the cancellation notice he has received actually comes from his contractual partner. In any case, he may not ignore or reject such a declaration simply because the sender cannot be identified beyond doubt.
Something different would only apply if it is not at all clear from the cancellation notice received who it is to be assigned to, for example because it neither mentions a name nor refers to a specific contract, nor does it appear from the sender data which customer it is acts. In such a case, it would be an invalid declaration of revocation to which the entrepreneur would not have to respond.
Conclusion
In the case of distance selling contracts, the consumer can exercise any existing statutory right of withdrawal by making a clear declaration to the entrepreneur. However, the revocation does not necessarily have to be declared personally by the consumer and it is not tied to a specific form. However, the declaration must be attributable to the contractual partner.
If the declaration of revocation cannot be used to determine unequivocally whether it actually comes from the contractual partner, the entrepreneur must seriously examine this and must not simply ignore or reject the declaration of revocation for this reason alone. Only in cases where it is not at all clear from the declaration of revocation received to whom it is assigned and it would simply not be reasonable for the entrepreneur to carry out any investigations into the sender, does the entrepreneur not have to react to this.
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