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The number of buyers and sellers who make their wine purchases on the internet - be it via larger online wine senders, small winery online shops or via auction platforms such as eBay in particular - is still growing rapidly. What does not go hand in hand with this development is the knowledge of the parties involved about their rights and obligations in online trade.

This article is intended to raise the consumer's awareness, while at the same time pointing out to suppliers their obligations.

1. When does the special consumer protection apply?
As with all transactions with commercial sellers, the consumer also enjoys special protection when buying wine online. In order to circumvent this, some sellers, especially on eBay, call themselves private sellers, although they are obviously entrepreneurs. Entrepreneur is not only the one who achieves his main income through online business, but also the one who achieves more or less regularly considerable turnovers through this in secondary activity. If the seller regularly offers goods of the same assortment and the number of previous evaluations is very high (e.g. more than 100 in the last 2 months) or if he is even a so-called power seller, he can be regarded as an entrepreneur.

2. What special information obligations does the wine merchant have towards a consumer?
Prior to the conclusion of the contract, the wine merchant must inform the buyer on the offer page about
- his identity and address for service
- all essential characteristics of the offered goods
- Delivery and shipping costs
- the terms of payment and delivery
- Rights of revocation and return
information. If this obligatory, pre-contractual information is spread over different places on the website, the corresponding links must be clearly marked - otherwise there is a lack of clear, comprehensible information.

3. What warranty rights does the buyer have?
If the seller is an entrepreneur and the buyer is a consumer, a warranty disclaimer is invalid. Just as with a purchase in a shop, the online seller must offer a two-year warranty for new items, which can be reduced to one year for used items. In view of the individual shelf life and the multitude of factors that have an effect here, however, no generally valid statements can be made in the case of wine. Here the individual case has to be considered. Ineffective are however again and again warranty exclusions such as "we consider objections only within 8 days after receipt of the commodity". In contrast to a merchant, the buyer is not obliged to examine the delivered goods immediately.

4.What does the right of revocation and return mean
Many consumers are not aware of the fact that they are entitled to a right of revocation and return - not to be confused with the right of exchange granted by the seller as a gesture of goodwill - even in the case of online purchases from entrepreneurs. The buyer may, unless the (few) legal exceptions for software, CDs or DVDs, magazines and expired goods intervene, generally revoke his order within 2 weeks without giving reasons by written declaration or simply by returning the goods. In the case of the delivery of goods, the period does not begin before the day of their receipt by the purchaser. However, if the value of the returned goods is up to 40 euros, the costs of the return shipment can also be imposed on the buyer if he was informed of this before the conclusion of the contract. This does not apply if the delivered goods do not correspond to the ordered goods.

Important: In the case of missing, incomplete or incorrect information, the right of withdrawal does not end at all, since a new version of § 355 para. 3 BGB (German Civil Code) has been in force since 1 November 2002. It can therefore be very profitable for the consumer to have the instructions and the status of the contractual partner checked by an expert.

5. May I also return boxes that have already been opened?
An exclusion of the right of withdrawal in case the packaging has been opened is invalid and leads to a defect in the instruction of withdrawal.

6. Do I have to return the goods in the original packaging?
The requirement to use the original packaging when returning the goods is invalid. It makes the entire revocation instruction ineffective because the consumer must assume that no revocation is possible if he no longer has the original packaging. A claim for value replacement for original packaging damaged by the consumer or no longer present only exists if this was clearly pointed out to the consumer at the conclusion of the contract.

7. Who bears the risk that the goods are lost or damaged on the way to the consumer?
In contrast to a mail order purchase between two private persons or two entrepreneurs, this risk is always borne by the wine merchant both in the case of outward delivery and in the case of return delivery.

8.Inadmissibility of replacement delivery clauses
In its ruling of 21.09.2005 Ref.: VIII ZR 284/04, the Federal Court of Justice decided that the clause used in the general terms and conditions of a mail order company vis-à-vis consumers, according to which in the event that a certain article cannot be delivered, an article of the same quality and price will be delivered, is invalid pursuant to § 308 No. 4 BGB.

According to this provision, in particular a so-called reservation of right to change is invalid in the general terms and conditions, namely the agreement of a right of the user to change or deviate from the promised performance, if the agreement of the change or deviation, taking into account the interests of the user, is not reasonable for the other party to the contract.

The substitute delivery clauses (delivery of the next vintage) found in most wine trade GTCs are supposed to entitle the trader to change or deviate from a promised performance, although a sales contract for a different performance has been concluded. This is therefore an inadmissible unilateral reservation to deliver the replacement item as performance under the contract, because this is supposed to be independent of whether this is of interest to the consumer or not.

Nevertheless, there are ways to regulate the case of replacement delivery in the event of non-availability of the ordered goods in a legally compliant manner and satisfactory for both parties to the contract.


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