Almost every consumer knows the length of the cancellation period. However, if the revocation was declared in a timely manner, there is a further deadline for the consumer: he must return the goods to the entrepreneur within 14 (further) days of his revocation at the latest. But does the right of withdrawal expire if the consumer violates this deadline?
What is it about?
Consumer cancellations are inherently annoying for online retailers because they generate effort and costs. It is even more annoying if the consumer does not send the goods back to the retailer within the deadline set by law.
The cancellation period as such is the primarily relevant temporal criterion for the consumer’s right to cancel distance selling. Within this period, usually 14 days from delivery of the goods, the consumer must decide whether he wants to stick to the contract or exercise his right of withdrawal. If he wants the latter, he must at least have sent his declaration of cancellation to the entrepreneur during the deadline.
If the revocation is declared too late, it will be time-limited and not effective.
However, the declaration of revocation in itself triggers further deadlines. On the one hand, for the entrepreneur regarding the reimbursement of the payment to the consumer.
On the other hand, for the consumer, because he is obliged to return the goods to be revoked immediately, at the latest within 14 days of receipt of the revocation by the retailer.
The cancellation policy states:
You must return or hand over the goods to us immediately and in any case no later than fourteen days from the day on which you notify us of your cancellation of this contract. The deadline is met if you send the goods before the fourteen day period has expired.
In practice, it is not uncommon for the customer to miss this deadline and only then send the goods to the retailer.
Expiry of the right of withdrawal?
In this case, some online retailers are of the opinion that the consumer no longer has the right to cancel because they are too late and refuse to reverse the contract.
But is that legal?
The clear answer to this is: No!
The consumer’s right of withdrawal is a design right. As soon as the timely declaration of cancellation is received, the purchase contract concluded will be converted into a liability for reimbursement.
The specification of the Section 357 Paragraph 1 BGB in conjunction with Section 355 Paragraph 3 BGB for returns within 14 days is purely a processing regulation.
Therefore: If the consumer does not comply with the fourteen-day deadline for returning the goods, he does not lose his (already effectively exercised) right of withdrawal. In particular, the dealer cannot take the position that he no longer has to take back the goods if the consumer had already effectively declared the cancellation within the cancellation period.
It is therefore clear that exceeding the return deadline does not lead to the expiration of a right of withdrawal that has already been exercised.
At best, if the return shipment is extremely delayed by several months or even years, one could consider forfeiting the consumer’s right to repayment.
So why does this deadline even exist?
Some retailers will now ask themselves what legal justification such a toothless tiger actually has in the law.
The background is that the consumer is more liable if the deadline is exceeded and is in default if he culpably delays dispatch.
For this reason, a claim for damages from the dealer due to delay in service would be conceivable. This can be the case, for example, with fast-moving technology that loses value almost every day.
For example, if the customer culpably fails to return a smartphone that has just come onto the market to the retailer for months after revoking it, the retailer can only sell the goods at a significant discount compared to the price due to the loss in value due to the passage of time , which would have been possible if the item had been returned on time, the consumer would be liable for damages in this regard.
In addition, the dealer has a right of retention with regard to the reimbursement of the purchase price and shipping costs as long as the consumer does not provide proof that the goods have been sent, unless the dealer has offered to collect the goods.
The retailer is therefore not unprotected in the event of delayed returns by the customer.
Conclusion
Unfortunately, the “dealer’s request” that the right of withdrawal is no longer applicable if the return is delayed after the 14-day period has expired will not be fulfilled.
Dealers are therefore well advised to continue to process the reversal in this case and not to refuse it.
The consumer expressly does not “lose” his right of withdrawal due to his dilly-dallying in returning the item.
In this constellation, dealers are protected by a right of retention with regard to the reimbursement of the purchase price and shipping costs as long as the goods have not arrived again or the consumer cannot prove that they were sent. Furthermore, the consumer who culpably returns late is liable for any damage caused to the retailer as a result of the delay.
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