Text messages in messenger applications like WhatsApp or Signal can change the contract, even if the agreement is in writing. The Munich Higher Regional Court sees it this way. However, it does not interpret the message “Oops 😬” as the sender’s consent to any contract changes. This impacts the unsuccessful sales of luxury sports cars.
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On November 19, 2020, a car dealer and a real estate company operator agreed to deliver a brand new Ferrari SF90 Stradale with certain specifications for a total price of 617,917.02 euros: this is 80,000 euros plus tax from the list price, which is used This should be done for quick completion. The General Terms and Conditions of the Ferrari Dealer stipulate that the contract may only be changed in writing. The buyer paid a deposit of 59,500 euros. The delivery date was non-bindingly announced for “II/III quarter” of 2021, only after two more quarters, i.e. at the end of March 31, a reminder was issued (and thus the default supplier was in default. With the possibility of inserting). 2022. Ferrari might be going faster, but it’s obviously coming along slowly.
During the wait, the dealer and the customer exchanged information several times via WhatsApp. On September 23, 2021, shortly before the end of the third quarter of the year, the seller had bad news for its wealthy client: deliveries would not occur until the first half of 2022. The buyer responded with “Oops 😬” and asked for “at least order confirmation”, which he received six days later. The customer responded with a thumbs up emoticon.
Delivery “fit” in May
In April 2022, the dealer offered delivery of the Ferrari for May 9 of the same year, which the buyer approved with “fits”. When that day came, the dealer again received bad news: due to battery problems, the vehicle could not be delivered indefinitely. The customer then set a three-week grace period until the end of May, eventually withdrawing from the purchase contract on 1 June and requesting that his deposit be transferred back.
In July, the dealer demanded the full purchase price upon handing over the car in August, but the former customer was not interested. A second demand in September to reduce the purchase price to 526,713.04 euros also failed. Ultimately, the dealer sold the much-delayed vehicle to someone else for 389,000 euros.
The former contract partners fought for their money in court. The former customer wanted his deposit back, but the dealer demanded 44,116 euros to compensate for the loss from the cheap sale to the replacement customer. Their reasoning: The customer accepted the extension of the delivery period till the end of June through WhatsApp, either by making faces or by showing a thumbs up after six days. Therefore, they did not have the right to withdraw from the purchase contract in early June.
olg replaces lg
The Munich II Regional Court (LG Munich II, decision of December 22, 2023 – 5 O 3532/22) agreed with this interpretation and ordered the non-Ferrari driver to compensate the dealer. But the Munich Higher Regional Court (OLG) as an appellate authority is now reversing the decision: First, it states that the written form agreed upon in the contract must also be complemented with text messages, good photographs or files with textual content. Which can be transmitted through messengers. In doing so, the Munich Higher Regional Court clearly contradicts the legal opinions of some other German courts, such as the Frankfurt Higher Regional Court and the Kassel District Court, which have not classified messenger texts as writing.
According to the Munich Higher Regional Court, expression of intent can in principle also be done using emoticons. These then have to be interpreted on a case-by-case basis depending on the context and the people involved. However, the Munich Higher Regional Court says that voice messages or videos do not meet the requirement of written form, but this plays no role in this specific case.
The problem for the Ferrari dealer is not the written form or the use of emoticons, but the interpretation of the specific emoticons used. According to the decision, on September 23, 2021, the grimacing face does not express consent; And the thumbs up dated September 29, 2021 did not mention the requested extension of the deadline, but rather a confirmation of the order sent that day. The customer therefore never effectively agreed to extend the delivery deadline to the end of June 2022, which is why it was able to effectively withdraw from the contract on 1 June.
Furthermore, the OLG does not classify the three-week grace period as too short due to past history. The defaulting Ferrari dealer will have to refund the deposit amount, interest and processing costs. The High Regional Court did not allow proper appeal to the Federal Court.
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