Nowadays, online platforms have become one of the most popular ways of purchasing goods. Where goods are purchased away from the seller's business premises using means of distance communication (letters, catalogues, telephone calls, emails, the internet, etc.), this is referred to as a distance sales contract (Fernabsatzvertrag). In such cases, a seller who offers goods for sale by distance means bears specific obligations under § 132 d of the German Civil Code (Bürgerliches Gesetzbuch).
In this article, however, we would like to acquaint you with a situation in which it was the seller of the goods who became the victim of fraud, which led to a conflict with the buyer of the goods and, subsequently, to litigation.
Important to know
If you have become a victim of fraud when entering into a commercial transaction, it is important to document the evidence as early as possible and consult an attorney — this increases the chances of recovering the funds through the courts.
Our client Oleg (name changed) registered his own company several years ago in order to be able to sell used goods on a regular basis. The bulk of his sales took place on online platforms, where Oleg posted the relevant listings and uploaded photographs of the items concerned.
From the very beginning of his business activity, Oleg was keen to act in accordance with the law, and so, immediately after registering the company, he approached our law firm and asked us to explain the finer points of selling goods by distance means. Having received a detailed legal analysis of the law, together with general terms and conditions (Allgemeine Geschäftsbedingungen, AGB) drafted specifically for his company's business, our client carried on his business for several years without encountering any problems.
A few years later, however, Oleg approached us for help again. During a conversation with the attorney, the client reported that he had been contacted by a buyer, Denis (name changed), who was expecting delivery of goods he had ordered through the online platform on which Oleg had listed them for sale. According to our client, however, no money for the goods had ever been credited to his account, and Oleg had therefore refused to send the goods to the buyer. Denis immediately consulted an attorney, who in turn sent Oleg a formal demand requiring him to send the buyer the goods he had ordered from Oleg and paid for using the account details given on the website. It turned out that the account details to which the relevant sum had been transferred did indeed name our client as the recipient, but the bank details given were entirely different. For this reason, Oleg asked our law firm to represent his interests in this matter.
Our client also recalled that just a couple of days before Denis contacted him, he had received an automatic notification from the online platform stating that his account had been accessed from an unusual location. Not attaching any importance to this at first, Oleg began to suspect fraud once the buyer called demanding delivery of the goods he had paid for, and changed his account password.
Seeking to get to the bottom of the situation, the attorney suggested that Oleg send a formal inquiry to the company operating the website on which our client had posted his listing, to find out whether any suspicious activity had been observed on Oleg's account.
Our law firm received a reply to this inquiry just a few days later. According to the information provided, in the period before the buyer placed the order there had been several attempts to change the password for Oleg's existing account; however, the company could only provide more detailed information to the investigating authorities if criminal proceedings were opened.
Because there were well-founded concerns that our client's account had been hacked and that, as a result, a third party's bank details had been substituted for Oleg's own, the attorney, after discussing the further course of action with the client, filed a corresponding report with the police requesting that criminal proceedings be opened against persons unknown.
In parallel, the attorney drafted a response to Denis's demand, explaining that our client was a good-faith seller who had been selling used goods through the relevant online platform for several years. The bank details had originally been provided by Oleg, but they did not match the account to which Denis had transferred the money. Given the suspicious activity observed on our client's account, there were grounds to assume that our client himself had become a victim of fraud. Oleg had also informed Denis of this by telephone and had asked him to recall the payment he had made, but for some reason this was not done. Since criminal proceedings had already been opened on the basis of Oleg's report, our attorney informed the buyer's representative that delivery of the goods to Denis was not possible because our client had not received the payment for them, and that Denis would be informed of the outcome of the criminal proceedings as soon as the necessary information was available.
The course of action proposed by our attorney did not satisfy the other side, however, and Denis stated that he was rescinding the contract on the grounds that the seller was refusing to perform his contractual obligations, i.e. was not handing over the goods the buyer had paid for. On this basis, Denis demanded the full amount he had transferred for the goods, as well as reimbursement of his attorney's fees.
Having discussed the further defence strategy with the client and warned him of possible litigation, our attorney informed the buyer's representative that transferring Denis the full amount paid for the goods was not possible, since Oleg had never received that sum. The attorney also stressed that the criminal investigation opened on suspicion of fraud committed by third parties against Oleg was still ongoing.
Despite these facts, however, Denis's representative filed a claim with the court seeking reimbursement of the sum paid for the goods that Oleg had refused to send to Denis.
Our attorney drafted and filed a corresponding statement of defence with the court, rebutting the other side's claims. Particular emphasis was placed on the fact that Oleg had never received the money for the goods, since it had been transferred to a third party's account rather than to our client's own account. The attorney also asked the court to note that, when paying for the goods Oleg had listed, buyers on the website also had the option of paying via the more buyer-secure payment system "PayPal", which provides for a refund to the buyer if the goods are not received; in this particular case, however, Denis had chosen a different method of payment, namely a bank transfer.
Oleg had therefore become a victim of fraud, a fact he had repeatedly brought to the claimant's attention, and criminal proceedings had been opened as a result. The investigation in that matter was still ongoing, so it was not yet possible to say who had actually received the funds. For this reason, our attorney considered the claim for reimbursement of the full sum Denis had paid for the goods to be unfounded, and argued that the civil proceedings should be stayed until the criminal proceedings had concluded.
Having carefully examined the case file, the judge concluded that it had not been proven that our client had received the money, and that the outcome of the criminal proceedings should therefore be awaited first, after which the civil case could be decided on the merits in light of any new facts that might emerge.
At present, we are awaiting the conclusion of the criminal proceedings and, drawing on many years of experience handling similar cases, we are highly confident that the civil court's judgment will be rendered in our client's favour.
Accordingly, should any misunderstandings or disputes arise, even in seemingly minor matters, we strongly recommend that you consult an attorney promptly in order to obtain legal advice and have your interests represented, both at the pre-trial stage and, if necessary, in court.
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THE LAW FIRM REPRESENTS CLIENTS' INTERESTS THROUGHOUT GERMANY
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