In the case of consumer contracts that require payment, online retailers must provide an order button “Order with obligation to pay” or something similar at the end of the ordering process. In principle, one button is sufficient even if there are several products in the shopping cart at check-out. The situation is different, however, if consumers want to conclude contracts for different types of services – then retailers must provide several order buttons according to a recent ruling. We explain the court’s decision and its impact on online retailers.
I. What does the law say about the order button?
If a contract is not concluded exclusively through individual communication, but rather within the framework of an online ordering system, the contract comes into effect § 312j paragraph 4 and paragraph 5 BGB only effective if the online retailer observes very specific requirements.
In the case of a contract with a consumer in electronic commerce that is subject to payment, the retailer must arrange the order situation in such a way that the consumer expressly confirms with his order that he is obligated to make a payment. If the order is placed via a button, the dealer only fulfills this legal obligation if this button is clearly legible with:
- nothing other than the words “order subject to payment” or
- is labeled with appropriate clear wording.
However, the law does not contain any express or unambiguous regulation on how retailers must implement this button obligation if they sell different types of services to consumers in parallel, ie in one go.
II. What was a current case about?
The LG Berlin recently had to decide on such a constellation (judgment of March 23, 2023, Az. 67 S 9/23).
In the proceedings, a consumer claimed reimbursement of costs from the operator of an online portal for a consideration called “Prime membership”, which was booked together with the operator in connection with the online booking of a flight.
The consumer was of the opinion that the online portal had against § 312j paragraph 3 BGB violated, which is why according to the regulation in § 312j paragraph 4 BGB no effective contract for the “Prime Membership” had come about. Therefore, the online portal must reimburse the fee already paid for this.
In its judgment, the court specifically explains the ordering process in this case:
“The defendant’s [Online-Portal] Related buttons are simply labeled “Continue” and “Continue with Prime for free”. It is true that the defendant also uses the “buy now” button to end the booking process relating to the flight booking. (…) However, there was no such thing for the further contractual relationship established by the defendant in addition to the flight booking for a (…) “Prime membership” to be remunerated annually.”
III. How did the court decide here?
The court ruled that if several contracts were concluded electronically at the same time (e.g. a purchase of a product and at the same time the conclusion of a subscription, e.g. for magazines or digital content), these contracts were in accordance with § 312j paragraph 4 BGB in each case only come about if the entrepreneur notification requirements § 312j paragraph 3 BGB separately for each contractual relationship would fulfil. This requires according to § 312j paragraph 3 sentence 2 BGB die Set up multiple buttons (buttons) if the entire ordering process takes place via a button.
In this case, the online portal would only have met these requirements if there was a separate second one for the conclusion of the “Prime Membership” and the requirements of the § 312j paragraph 3 sentence 2 BGB corresponding button would have been provided. However, there was no such second button for the contractual relationship established by the defendant in addition to the flight booking for an annual “Prime membership” to be paid for annually.
IV. What do online traders have to consider now?
1. A button when selling similar services
Online retailers who sell similar services in their web shop, such as selling physical products, do not have to consider anything else in connection with this court decision.
As before, it is sufficient for such retailers to simply provide a button with the label “order with payment” or with a corresponding clear wording at the end of the ordering process. This enables a valid sales contract to be concluded with consumers for all physical goods that the consumer has placed in the shopping cart.
2. Multiple buttons when selling different services or different contracts
If an online shop sells various services to consumers, consumers are offered physical goods for sale and at the same time the conclusion of subscription contracts (e.g. for magazines or for the regular purchase of digital content or other digital services, such as a special “membership” ) is offered, the ordering process must be designed in such a way that the consumer can click an order button for each service individually to complete the ordering process. In such cases, consumers must generally be guided in the ordering process in such a way that they conclude the contracts for the different services one after the other.
Anyone who offers other types of services in the web shop in addition to the sale of physical or digital products must – at least according to the LG Berlin – design the ordering process in such a way that each type of service has its own order button labeled “Order with obligation to pay” or another corresponding button unambiguous formulation completes the ordering process clearly and bindingly. It may therefore be necessary to provide several order buttons in an ordering process.
Online traders who do not observe this not only run the risk of being warned, but also of having to reimburse the consumers concerned for the money they have already paid. Because without the correct implementation of the order buttons, no effective contract for the respective services can be concluded according to the legal requirements, so that dealers are not entitled to payment of the corresponding fees.
Tipp: Do you have any questions about the contribution? Feel free to discuss this with us in the
Entrepreneur group of the IT law firm on Facebook.