The Sales Contract According to § 433 BGB
Sales Contract Definition:
The Sales Contract according to § 433 BGB describes a contract under the law of obligations that results in an obligatory transaction as a legal consequence. A Sales Contract consists of two corresponding declarations of intent, namely offer and acceptance, which relate to a Sales Contract (Brox/Walker BGB AT Rn. 77 ff.; AnwK-BGB/Schulze, Vor §§ 145 – 157 Rn. 6.).
Services
First, there must be an offer. An offer is a unilateral declaration of intent requiring receipt, which contains the essential components of a Sales Contract (essentialia negotii), namely the object of purchase, purchase price, and contracting parties, has an intention to be legally bound, and must be acceptable with a simple “YES”.
( MüKoBGB/Westermann, 8th ed. 2019, BGB § 433 Rn. 26 ff. ; Brox/Walker BGB AT Rn. 165a)
The mere display or advertisement of an item does not constitute an offer. In such cases, the seller typically lacks the intention to be legally bound, i.e., the will to be legally bound by their actions. In cases such as newspaper advertisements or shop windows, this is not an offer but an invitatio ad offerendum, an invitation by the seller for others to make an offer.
Acceptance
An offer must also be accepted by the other party to the purchase, also called the contracting party. An acceptance is a unilateral declaration of intent requiring receipt, which positively refers to an offer and has an intention to be legally bound.
( MüKoBGB/Westermann, 8th ed. 2019, BGB § 433 Rn. 30 f. ; Brox/Walker AT Rn. 176 ff.)
The contracting party must therefore only be clear that they want to declare something legally binding and express this to the other party of the contract.
Legal Consequences of a Sales Contract:
The legal consequence of the Sales Contract is the seller’s obligation to hand over and transfer ownership of the purchased item to the buyer (cf. BeckOK BGB/Faust, 55th Ed. 1.8.2020, BGB § 433 Rn. 30 ff. ).
The buyer is obligated to accept the purchased item against payment of the purchase price (cf. BeckOK BGB/Faust, 55th Ed. 1.8.2020, BGB § 433 Rn. 54 ff. ).
Example:
Sales Contract, § 433 BGB eBay Classifieds
The Sales Contract is one of the contracts most frequently concluded by people without much thought, e.g., in supermarkets, kiosks, or department stores. There, everyone is generally aware that the items brought to the checkout must be paid for. On the internet, however, this does not seem to be clear to many people. More specifically, in the case of eBay Classifieds. There, messages are exchanged back and forth in chats, but at what point is one legally bound to buy or sell the advertised item, and more importantly, under what specific conditions?
The advertisement, as already explained, merely represents an invitatio ad offerendum (invitation to make an offer to the seller). Therefore, no claim can usually be derived from this alone.
Chat messages that ask questions about various properties of the item for sale do not constitute an offer either. The same applies to questions about the price or similar matters.
Typically, a Sales Contract is inadvertently concluded on eBay Classifieds when the buyer asks if the item is “still available” and the seller confirms this. The buyer then writes that they would like to have it. With this message, they make a legally binding offer to the seller.
! The object of purchase, purchase price, and contracting parties are present. These are derived from the persons in contact with each other (contracting parties) and the advertisement (purchase price and object of purchase). In such a situation, an intention to be legally bound can be assumed from the perspective of an objective third party.
The seller then responds with “okay”. This constitutes an acceptance. Consequently, a valid Sales Contract exists. If the seller receives a more lucrative offer afterwards, they are out of luck, because the Roman principle “pacta sunt servanda” (agreements must be kept) applies. The same applies to the buyer, even if they lose interest in the purchased item afterwards. This would represent an irrelevant motive.
In conclusion, it can be summarized that agreements about items on eBay Classified can more quickly than expected constitute a purchase contract according to § 433 of the German Civil Code (BGB). Consequently, nothing should be hastily promised on eBay Classified.
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