The Federal Court of Justice had to decide the question of whether a revocation instruction designed in continuous text, which literally corresponded to a legal model, should be ineffective because the user omitted the subheadings.

The operator of an online store used general terms and conditions for his online store, which he also effectively included in sales. In doing so, he also used a statutory model GTC clause on consumers' right of withdrawal. This clause was marked with the heading "Cancellation policy". For reasons of space, the store operator omitted the other subheadings "Right of withdrawal", "Consequences of withdrawal" and "Financed transactions" provided for in the model.

When a customer wanted to cancel the online transaction after six months, the store operator refused to allow the consumer to do so because the four-week cancellation period had long expired. The consumer was of the opinion that the clause presented to him was invalid, as the consequences of missing the withdrawal period were not apparent to him.

Decision of the court
The BGH has ruled Judgment of 01.12.2010 - Ref. VIII ZR 82/10 ruled that a withdrawal policy used by the trader without subheadings did not comply with the statutory model withdrawal policy and was not clear within the meaning of the law, meaning that the withdrawal period did not begin to run. The consumer may therefore still cancel the transaction six months after delivery of the goods.

Cancellation notices must be clearly designed and make the consumer's essential rights clear in accordance with the requirements of the means of communication used. In this case, the store operator used a withdrawal policy that was only headed with the word "Right of withdrawal". The subheadings provided for in the model instruction were missing. This design did not make it clear to the consumer that the instruction also contained information on the consequences of withdrawal and where these begin and end.

The model included in the Introductory Act to the German Civil Code meets these requirements. If subheadings are omitted, the revocation clause no longer corresponds to the model in the opinion of the judges in Karlsruhe, meaning that the statutory privilege cannot apply.

Conclusion
The BGH continues to apply very strict rules for the effectiveness of revocation instructions. Internet store operators should therefore seek advice from a specialized lawyer before using them.

In this case, the store operator must also fear being warned about breaches of competition law. Ineffective general terms and conditions are generally anti-competitive and can therefore be warned.