Wilful deception

The judgement of the German Supreme Court of 23rd March 2005 (File Number X ZR 123/03) – Entry to the online business directory of 22nd February 2005

The plaintiff is a company which specialises in organising and equipping entertainment events. The defendant runs an online business directory, into which interested companies can be entered.

On 7th March 2001, the defendant sent an offer to several companies, among others to the plaintiff’s company. The offer promoted “an entry into our federal online yellow pages” and read as follows: “Choose the form of entry that you prefer from those listed below and send your form to us not later than 30th April 2001”. Whereas price details accompanied three out of four forms to choose from, the price for the basic entry could only be found small-print further down. The note read among other things: “I herewith confirm the correctness of the above-given company data and request a basic entry into the yellow pages at an annual price of EUR 845.” The reverse side of the document contained the defendant’s General Terms and Conditions. Point 2 thereof, headed “Entry Period” read: “The agreement is concluded for the period of two years.”

Having chosen the basic entry by ticking the appropriate box and having filled in the data on her company, the plaintiff signed the letter and sent it back to the defendant on 30th April 2001. The defendant calculated the amount of DM 1,917.11 due for a year-long basic entry and later sent a reminder to the plaintiff requesting her to pay the amount due. The plaintiff did so.

In her writing dated 18th September 2001, the plaintiff rescinds the agreement with the defendant on the grounds of wilful deception. She maintains to have considered the defendant’s letter to be a form of the telephone directory publisher, which had been requested by Deutsche Telekom to contact her, since she had had her phone number changed by Deutsche Telekom. By ticking the box “Basic entry”, she had expected to receive a free-of-charge service. Furthermore, she claims to have been deceived with respect to the duration of the agreement. She has paid the amount due in order to avoid a dispute in court. It was not until later that she sought legal advice.

The plaintiff demanded in court that the agreement dated 30th April 2001 be found void. She also demanded that the amount she had paid be refunded to her with interest due.

The local court rejected the claim. The plaintiff has lodged and appeal.

The German Supreme Court sided with the lower court. The Court answered in negative to the accusation of malicious deception, reasoning that the letter sent by the defendant contained all information necessary in order to determine the addressee.

An entry in an online business directory for a period of 2 years disguised as an “application for entry and galley proof” does not justify a rescission on the grounds of wilful deception. This applies even if the advertisement in question is contrary to public policy or to accepted principles of morality according to competition law.