The 10 most important legal tips for trading on ebay and Co.

The blouse was a mistake, the book you have twice and the last birthday present is so horrible that you want to get rid of it as quickly as possible? On eBay, Amazon Marketplace, Shpock, Quoka, Kalaydo, and many other platforms on the Internet, you can sell unloved pieces. This will make room and bring a little more money. But beware: Even as a private seller, you should know and observe the following rules so that online sales do not become an expensive failure.

You need to follow rules for online sales largely depend on whether you sell privately or commercially. The problem is that the transition between the two is fluid, and there are no general criteria. Anyone who only occasionally sells things from his private property that he no longer needs is almost certainly a private seller. However, if, for example, you dissolve your extensive record collection and offer the pieces individually over a more extended period and regularly, you may already be considered a commercial dealer and then have to comply with a variety of legal requirements.

If you want to sell as a commercial retailer on eBay, Amazon Marketplace, or any other platform, you should seek advice from a lawyer in advance. Strict rules apply, especially regarding consumer protection, tax law, trademark, or competition law, which determine the sales process and your appearance on the platforms. Failure to comply can be expensive – and ignorance is usually not an excuse that courts or competitors accept.

I have placed a product at the wrong price. What can I do?

In principle, buyers and sellers are bound by their wills on the sales platforms. Anyone who posts an offer must, in principle, also sell for it. However, there are exceptions. This means you can end offers that you were wrong about prematurely – and then re-enter them with the correct information. However, this can only be done if there are “legitimate reasons.”

Explanation error: An explanation error exists if you made a mistake when creating the offer, i.e., if you mistyped the price, for example.

Property sire: This can be a reason for an early end of the listing if you were wrong about a product feature – for example if you offered a work of art and assumed it was a real job but now realize it was just a reprint.

Under these circumstances, purely legally, you can challenge the transaction. If there is already a bidder or buyer, you must declare the dispute to them as soon as possible and can then terminate the offer on the platform prematurely.

But beware: If the buyer is demonstrably suffering damage because you terminate the offer prematurely, he may be able to claim damages against you!

By the way, you can’t end the offer prematurely just because you don’t want to part with the blouse or the record collection anymore, a good friend has registered interest and you want to leave it to him, or you could sell it somewhere in the meantime at better conditions. These are not “legitimate reasons” in the legal sense.

A buyer wants to withdraw his offer. Can he do that, or can I insist that he pay?

It depends on whether you sell commercially or privately. As a commercial dealer, you must grant buyers a right of withdrawal. This means that the buyer can withdraw from the purchase within 14 days, i.e., does not have to pay. Of course, he does not receive any goods or has to send them back.

As a private seller, you do not have to grant any right of withdrawal or return, but here, too, a buyer can withdraw his offer – namely, if there is a reason to contest it. These can be:

Content error: For example, the buyer misunderstood the item description.

Explanation error: For example, the buyer mistyped his bid (e.g., eBay).

Property sire: The buyer has erred on one essential feature of the item, for example, believing the artwork offered to be genuine rather than recognizing that it is a reprint.

Fraudulent deception: If you have concealed important facts or claimed false particulars in your offer, the buyer can also challenge the purchase contract.

If any of these reasons apply, the buyer may withdraw his offer by challenging your contract.

However, if he has only changed his mind, that is not a legitimate reason for a challenge. So if he doesn’t like the product anymore or doesn’t want to spend so much money on it, you don’t have to accept it – or you can even claim damages if necessary. You must prove that you have suffered an economic injury because the business could not be concluded.

Can I also sell my partner’s goods?

The contractual partner of a buyer or bidder is always the one who has created the respective account with eBay, Amazon, and Co. If you sell someone else’s goods – for example, because your partner does not have his performance on the sales platform – you are also solely responsible to the seller for all aspects of the business. Therefore, it is up to you to ensure that the offered goods arrive at the buyer in the promised condition on time. You will have to deal with any complaints, and in case of doubt, you will also have to tax the income from the business.

Shared eBay account: Judgment of the Baden-Württemberg Fiscal Court

Anyone who creates an account with the online auction house eBay is also liable solely for the sales incurred there. The Baden-Württemberg Fiscal Court ruled that the report cannot be “shared” with another person to distribute the revenues as well (Az. 1 K 2431/17).

A man had sued, together with his wife Waren about “eBay. The sellers opposed this by arguing that they would both sell goods through the account. However, the articles belonged partly to the man, partly to the woman, and partly to the community. Each earns only so much that one is still regarded as a small entrepreneur and not as a small business owner. VAT.

As a result, the tax office claimed the tax exclusively from the husband who had created the eBay account, and the Baden-Württemberg tax court agreed with the tax office. Turnovers can only be attributed to those assigned a username when opening the account.

In principle, it is not prohibited by law that you sell someone else’s goods – always provided that they allow you to do so and have the right to sell the products themselves. However, the operators of the online platforms may adopt rules prohibiting such proxy transactions. Therefore, before you publish a corresponding offer, take a look at the general terms and conditions or the terms and conditions of use of the platform to be on the safe side.

I ended my offer early. What are the consequences?

This depends on whether there was already a buyer or bidder when you ended the offer prematurely. You make a binding offer as a seller when you post your product on the platform. If an interested party bids on it or clicks on “buy,” he accepts the offer, and a binding purchase contract is concluded, which both sides must fulfill.

If you change your mind – for example, because you received an enticing purchase offer for your product outside of the sales platform – you are undoubtedly unlucky. In these cases, the case law regularly declares binding transactions on the online platforms. Sellers must then return their goods at the specified price – or pay compensation. And this also applies if, for example, a car is sold for just one euro.

Car auction binding for sellers: Judgment of the Federal Court of Justice

In the case that went up to the Federal Court of Justice (BGH), an eBay buyer sued the seller of a used car. He had placed the vehicle on the platform with a starting bid of 1€ but later canceled the auction prematurely because he had been able to sell the car outside ebays for a little more than 4000 euros. In the meantime, however, the plaintiff had already submitted a bid for the vehicle and now argued in court that a binding purchase contract had been concluded. Because the car had already been sold, he now demanded compensation in the vehicle’s value amounting to 5250 euros.

The BGH agreed with the plaintiff (Az. VIII ZR 42/14). It is typical for eBay auctions that buyers can make bargains there. Sellers could prevent this by stating a reasonable starting price. Offering the car for 1€ was based on the seller’s free choice, who therefore had to accept the risk that the auction would end with an unfavorable result for him.

The only exception: There are grounds for appeal according to § 119 Bürgerliches Gesetzbuch (BGB). In this case, you can terminate your offer prematurely. But beware: In the event of a dispute, courts often interpret the grounds for appeal strictly, and you have to prove, for example, that you were wrong about the starting price and that you did not just change your mind later.

Do I have to tax the income from my sales on eBay, Amazon and Co.?

This question can only be answered by a tax lawyer or a tax consultant because it depends on many individual factors. However, you must differentiate between the types of taxation involved: VAT, for example, is only payable if you, as a commercial trader, generate so much turnover that you no longer fall under the small business regulations or have rejected the corresponding VAT exemption. However, whether the income from the sales must be stated and taxed; for example, in the income tax return, you should have it checked individually.

Do I need to provide a warranty or warranty for my sold products?

Although it is often used colloquially synonymously, warranty and warranty are two completely different things. A warranty is always a voluntary service that a manufacturer or seller does not have to grant. But if he does, he has to stick to it. Even if you affirm a particular property of your product in an article description, a guarantee promise can be derived from it under certain circumstances. So be careful with formulations that praise your product over the green clover.

In contrast to the warranty, the warranty is a statutory right intended to protect consumers (§§ 434 ff BGB). If you are a commercial dealer, you are obliged to grant buyers a warranty right. You can exclude the warranty right as a private dealer, but you must also explain this explicitly in the offer description. If you do not mention this, you are also under warranty.

In concrete terms, if a product you sell has a so-called material defect, you must repair it, deliver a replacement or – if both are not possible – refund the purchase price.

Good to know: If you conceal a defect in the article description or deliberately provide incorrect information, the exclusion of the warranty is of no use to you. Then you are still liable – even as a private seller.

A buyer can rely on the warranty for two years from purchase. However, as a seller, this does not mean that you now have to tremble for two years whether you need to refund the purchase price because the product may break. You are only liable for defects already present or created when you handed over the outcome.

So if you sell a toy and the child for whom it was purchased breaks it after a year, there is no claim against you under the warranty right. However, if the toy is already defective at the time of sale – for example, because the battery compartment has become wet – you will have to pay for any damage caused.

If conflicts arise over the warranty, the problem is that it is difficult to prove whether a defect was already present at the time of sale or was only caused by the use by the buyer. The following applies: In the first six months after purchase, the seller must prove that the buyer caused the error. This is followed by the so-called reversal of the burden of proof (§ 476 BGB). After the first six months, the buyer is obliged to prove that the defect was already created in the product at the time of sale if he wants to assert warranty rights.

The exact wording is important to exclude the warranty as a private trader legally. DAHAG’s independent cooperation lawyers provide quick and uncomplicated support.

Can I use photos from the Internet for my product descriptions?

If you copy foreign photos from other websites, you may violate several laws. In any case, you are committing copyright infringement. In Germany, anyone who makes a work – i.e., a photo, a sculpture, a text, or a building – is the author and has the corresponding copyrights. The result may not be reproduced or published without his permission. If this does happen, the author can take legal action against you and, for example, claim a fee for using the photo or claim damages.

Foreign images may become even more expensive if brands are depicted on them. Trademarks – as names and logos – are in most cases protected by trademark law and companies take great care not to damage your reputation with abusive images. So if you do not have the trademark owner’s permission, you should not advertise with a photo of his logo or similar to generate more attention for your offer.

Images depicting other people may also be difficult because here the right to one’s image comes into play under the Art Copyright Act. Roughly speaking, this gives everyone the right to decide whether they want to be shown in a photo publicly and where. So if you take a picture from a website where a pretty young woman is wearing the shoe you are about to sell, not only the photographer of the photo may ask you to pay for it, but possibly also the lady depicted on it because she has not given her consent to publish the image in your online auction.

So if you want to enhance your offers with photos, follow these tips:

1. Photograph the products you sell. While it may be tempting because your old sneakers aren’t quite as handsome anymore, resist the temptation to post a picture of the new successors instead. This is misleading and can be interpreted as fraudulent deception.

2. Photograph the products you sell yourself. This is the only way to ensure that you are not infringing any copyrights. If you are unable to do so and therefore commission someone to take the photos, you must obtain in writing the rights of use for publication in your online offers.

3. Do not advertise with brand representations. Of course, this does not mean that you now have to photograph the shoes convulsively so that the brand logo is not visible. It’s part of the product. But don’t copy brand lettering or logos onto your product image to attract more attention.

4. When you stage your product with a model, you enter into a model contract with the person photographed, stipulating that you may use the images for your online sales.

Do the buyers of my products have a right to withdraw?

If you act as a commercial dealer or as a private seller, you are not subject to the Distance Selling Act, which regulates the right of withdrawal. However, you can voluntarily grant buyers of your goods a similar request. In this case, you can freely define the terms and conditions and, for example, decide for yourself how long buyers may exercise this right.

Who bears the shipping costs if I sell something privately?

The sale itself depends on what you provide in your offer or whether the sales platform itself has regulations for this. For example, if you’re selling through Amazon Marketplace, you can take care of the shipping yourself – then you can also set the shipping costs yourself – or leave it to Amazon. However, it is common for the buyer to bear the shipping costs for private sales.

Less clear is the question when it comes to shipping costs for complaints and returns. If you are a commercial seller and are obliged to grant warranty, revocation, and return rights, you previously had to assume the costs of returning defective goods automatically. However, this changed a few years ago with the new Consumer Rights Directive. Now, if the customer uses his right of withdrawal, you can also impose the costs for the return shipment on the buyer. But beware: On the one hand, you must inform him correctly before concluding the contract, and on the other hand, in this case, you must also reimburse the shipping costs (standard shipping) that you have charged for sending the goods.

Do I need separate terms and conditions for my eBay or Amazon Marketplace account?

In principle, there is no legal obligation for you to use so-called General Terms and Conditions (GTC) when you sell items on an online marketplace. By the way, not even if you act as a commercial dealer.

However, as a commercial seller, you are subject to various information obligations – for example, revocation and return rights. And they let you fit well into terms and conditions. So you only have to formulate them once and not write them individually for each article description. Just make sure that your customers like the terms and conditions in every offer by clicking on the button “legal information of the seller.”

For specialized terms and conditions, please get in touch with one of the independent cooperation lawyers of the German Bar Association.

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