Legal Hints for Christmas Shopping
As Christmas time is coming, so is the unwrapping on Xmas Day as well. Cope with the fact, that many Germans will shake their heads in pity that you, though you consider it to be normal, always present the gifts one day too late… Germans not only give to their kids on Christmas Eve but also do not place them in stockings by the fireplace. But that is not really the topic of this article, chat on this with neighbours as small talk. Around this time of year, many Germans are panicky trying to collect all the Christmas presents – as if this holiday would be coming unannounced. Not only getting the right gifts and wrapping them will give you a headache, but also if the gifted person does not like the present. Will he or you be able to exchange it for something else? We have collected the most important legal aspects so that Christmas will really be a merry fest.
Buying Presents Online
When you have made up your mind what to give, the question arises “Where to buy?” Shopping malls as well as online shops both have their disadvantages. Going downtown to visit the Weihnachtsmärkte has the advantage of nice atmosphere meeting seasonal moods with all nicely decorated facades of shopping houses. You can not only take the presents with you immediately but often you can have them wrapped on the spot.
Shopping online does not give you the Christmas ambience and you will typically not have your presents wrapped. However, prices are often very interesting. When you decide to do some shopping online then be cautious: Order in a timely manner well ahead to make sure they arrive on time. When you get a teddy instead of the cute Barbie doll or the toy car in the wrong colour, the price advantage from online shopping cannot prevent any tears. Consider also that a lot of black sheep are on the prowl on the Internet. So make sure you can trust the online shop and also pick a safe method for payment like PayPal or MoneyBookers.
Sending a Gift to Dear Ones far away
When you want to send friends or relatives a present, you will surely take postal services. But what happens when it gets lost? Who is responsible that the product is not damaged?
Small parcels are not insured. Parcels are insured up to a value of € 500. When you need more coverage then you have to separately insure your freight. When you forget to mention that the contents are worth more than half a million then you will have to carry a part of the damage (§254 BGB – BGH judgment of May 08, 2003, Az.: I ZR 234/02). For lost big parcels you can demand damages as well as the postage paid in vain. When a parcel reaches its destination empty, the sender can also be held liable when the transport insurance does not cover the contents and he did not clarify this when dispatching the package (LG Coburg, judgment of December 12, 2008, re 32 S 69/08). When the parcel is of higher value it is recommended to open the parcel in front of of the postman to have a witness when anything is missing or damaged. N.B. This only means that you open the parcel itself and not any packages inside. The contents are only to be checked for evident damages. Though these guys are usually in a hurry, do insist
What to do When Santa Gave the Wrong Present?
It happens year after year, tears if not sad faces at the Christmas tree because the considered person’s taste or expectations were not met. When you bought it online, returning is no big deal. Due to the right of revocation, you can return the bought items within 14 days without any reason and you are entitled to receive your money back. When the item worth more than € 40, the shop will also have to cover the postage – in this case just return it “unfrei (postage paid by recipient)”. Only in few exceptional cases, you have no right to revoke an online shopping, such will be for made-to-measure things, CDs, or magazines (§321d IV BGB). However, when you bought in an online auction, and not an online shop, you will only be entitled to this right of revocation when the vendor is selling for business purposes.
Favourite presents are care products for him and her. When you ordered such on the Internet, you may still return them when you do not like them. In contrast to some stipulations in STC of online vendors, opened or used cosmetic products do not belong to such goods “that are not suitable for return (§312d IV no. 1 BGB). The right of revocation is to replace the chance to test it before buying – as you would do in a physical store. However, testing does not mean using the product more than what would be tolerated in real stores (OLG Cologne judgment April 27, 2010, 6 W 43/10). What goes beyond testing, is subject to damages.
When wanting to return something to a shop in a mall, you have to remember that you have no enforceable right to return anything. The legal proverb “pacta sunt servanda” goes all the way back to Roman law. It simply means contracts are to be kept.
So that remote control car toy doesn’t want to budge or laptop is too lazy on the lap, moist eyes will now surely not be the expression of happiness. In this case, the law also has a solution: warranty! Guarantee. You have the right to have the gadget either repaired or replaced or the whole contract revoked (§437 BGB i.c.w. §439 BGB).
When having bought online, receiving defective merchandise, you ought to consider whether or not it makes more sense to simply return (following rules for distant contracts) or claim your right for warranty. The practical difference is that following the rules for distant contracts, you will immediately get your money back. When you go for warranty, then you first have to let the vendor try to repair then you can demand your money back.
Voucher as an Alternative
When you can’t come up with the right gift for your beloved, how about giving a gift certificate voucher from the favorite boutique or jeweler or book shop around the corner? And yes, vouchers also have some legal snags.
How long is a voucher valid? That depends on several criteria. Does the voucher only have the date of issue on it? Then it is generally assumed, that you have three years time to use it (§§194,195 BGB). If the voucher mentions a validity period then it will be valid until that day. However, the period must be reasonably long otherwise this stipulation will be null and void so that the general three year period kicks back in.
Some vouchers have implicit validity periods. When you get a voucher for a theater show then it goes without saying that it will only valid during the current playing season. But the situation is different with movies: Generally, they are not for a certain movie and may therefore only expire earliest after two years (OLG Hamburg, judgment September 21, 2000, re 10 U 11/00).
What is the case, when there is a certain name on the voucher? In such case, the voucher can nevertheless be passed on (AG Northeim, judgment August 26, 1988, re 3 C 460/88). This relates to the general assumption that the name on the voucher relates to a special relationship between giver and recipient. However, cases exist where the issuer of a voucher has a legitimate interest that voucher will really only be cashed by that considered person. This can be the case for soccer games in stadiums.
Want to cash the voucher without buying anything? Reckon that the vendor will usually deny as his business is not bank but selling merchandise. Whenever a voucher is cashed in then only as a matter of goodwill – without you having a right to enforce it.
Gee, you just missed the validity period, well then it is not totally worthless. Fact remains that the vendor may refuse converting with reference to time limitation. When this happens you can demand the value paid out. The vendor already received payment for a service / purchase not yet fulfilled. In such case, this person would “unjustly enriched” (§812 BGB). He will also not be able to deduct any lost profit. Don’t forget this right will become time-barred after three years.