If retailers offer or advertise goods by weight, volume, length or area, they are also obliged to state the basic price (= price per unit of quantity) in addition to the total price. Since a questionable judgment by the LG Bochum in 2014, it has been disputed whether a basic price obligation should also be assumed for candles. The OLG Schleswig has now taken a position on this and has come to the opposite conclusion. Read more about the decision below.
I. The facts
After a warning, a retailer had given a cease-and-desist declaration to only advertise and offer the candles he offered in the future with an indication of the basic price.
The reason for the original warning was that the dealer had provided his candles with weight information, which the warning party had considered the obligation to state the basic price to be justified.
In response to a violation of the assumed obligation to cease and desist, the warning party now demanded the payment of a contractual penalty.
After the district court in Kiel had partially granted the action for the payment of contractual penalties in the first instance, the defendant dealer requested the complete dismissal of the action in the appeal proceedings before the Schleswig Higher Regional Court.
II. The decision
In its judgment of March 9th, 2023 (Az: 6 U 36/22), the Higher Regional Court of Schleswig determined that there was no violation of the cease-and-desist declaration. When offering candles, it is not mandatory to state the weight, and therefore also not to state the basic price.
The Higher Regional Court of Schleswig thus refused the opinion of the LG Bochum, which had classified candles as goods subject to a basic price in its judgment of April 11, 2014 (Az: I-12 O 220/13). The judges justified this by saying that the weight of a candle is relevant to the burning time.
The Schleswig Higher Regional Court saw this differently. When selling products by weight, volume, length or area, the basic price calculated for this must always be given so that consumers can compare prices on the market.
However, the obligation for products sold by weight is only relevant if the sale weight is decisive for the specific total price, i.e. this is directly proportional to the weight.
In the case of candles, however, a weight-related price calculation does not take place in principle. Rather, the total price is calculated according to the quantity delivered (number of items).
For this reason alone, a basic price obligation is ruled out.
Nor can such a structure be constructed by a supplier of a candle providing a weight specification in individual cases. Such is only a product feature that, in individual cases, takes into account the consumer’s need for information as one of various conceivable attributes.
In addition, the product weight may only have been specified in order to provide consumers with information about the shipping costs incurred, for example in the case of a shipping cost model based on weight.
The mere indication of a weight is therefore not constitutive for the product to be sold by weight within the meaning of the basic price obligation under Section 4 PAngV.
III. Conclusion
According to the opinion of the Schleswig Higher Regional Court, which is also represented here, there is no obligation to state the basic price in offers and advertising for candles.
This applies even if the product weight of the candle(s) is specified in the individual offer or advertisement.
A “delivery by weight” that is mandatory at the base price only exists if the delivery weight is directly calculated in relation to the total price demanded, i.e. the latter increases or decreases according to weight.
However, the price for candles is not calculated according to the delivery weight, but according to the number of pieces.
With this judgment, the OLG Schleswig positioned itself contrary to the LG Bochum (judgment of February 11, 2014, Az: I-12 O 220/13), which had affirmed an obligation to state a basic price for candles.
Thanks to the current decision of the Schleswig Higher Regional Court, this legal opinion can now be regarded as outdated.
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