A seller can lie
“So cheap only here!” - When boasting sellers turn out to be a boomerang
Can you really believe the talk of salespeople? In other words: who takes it at face value when a seller brags that the product is cheapest, has the longest warranty and is equipped with the most extensive range of accessories? In fact, you can actually believe all of this. Because if the seller does not tell the truth, then he is violating Black Clause No. 19 of the UWG.
"Inadmissible business activities within the meaning of Section 3 (3) are ... No. 19: ... an untrue statement about market conditions or sources of supply in order to induce the consumer to purchase or use goods or services under less favorable conditions than the general market conditions; "
Trust is protected
The relationship between buyers and sellers is ambivalent. On the one hand, customers want to receive trustworthy advice so that they can make the right purchase decision. On the other hand, they have in the back of their minds that the seller wants to sell them (anything) if possible - is that why a mutual trust base is impossible?
As a customer, how do I know that a salesperson is telling the truth when they claim that the product is the cheapest in their store? Can i trust it?
Black Clause 19 seeks to strengthen this trust by punishing it if the seller lies in such cases. So if a seller claims that the product is not offered cheaper anywhere within the city limits so that the customer can buy from him, and if that is not the case, then he is violating the black clause. However, this also applies to false information about other so-called market conditions such as warranty periods or services.
Again: the lie
While the UWG speaks of “untrue information” in the text of the black clause, the EC draft directive speaks of “factually incorrect information” - what is meant, of course, is the same: the seller says something or states something that is objectively incorrect. This means that mere hints from the seller are not enough. The seller must expressly tell the untruth.
It is legally problematic whether the seller himself has to know that he is not telling the truth. The wording of the clause is not clear here. It can be interpreted in such a way that the seller's statement only has to be objectively incorrect, i.e. the seller does not need to know that he is telling the customer the untruth. Thus, a seller could violate the clause even without intent.
However, the clause can also be understood differently on this point. The phrase "[the seller must induce the customer] to (..) buy or use a good or service on less favorable terms than the general market conditions " can be interpreted in such a way that the seller - which is regularly assumed - wants to sell his product and this product is offered by him at "less favorable market conditions" - without the seller being aware of this.
Ultimately, only the courts can make a final decision. The clause remains fuzzy here. However, the knowledge of the seller about the untruth of his statement still plays a decisive role in the so-called sales intention. More on that in a moment.
What are market conditions?
From the wording of the black clause it follows that the goods or services are obviously offered in the shop at less favorable market conditions than elsewhere. However, it must be clarified what is actually meant by unfavorable market conditions.
The most prominent market condition is the price or the price range. If the product is therefore more expensive than elsewhere, this is a less favorable market condition. However, other aspects of the product such as services, special guarantees, extended warranty periods or the features of the product can also be covered by the term.
In addition to the market conditions, the regulation also addresses the so-called sources of supply. This simply means the place where the product can be obtained, i.e. purchased. If a seller gives false information about this, he also violates the clause. For example, if he claims that the product is nowhere else to be found (discontinued model, delivery stop, etc.) or not in a certain area and this does not correspond to the truth.
There must be intent behind this
Basically, a seller only violates Black Clause 19 if he provides incorrect information in order to sell the product to the customer on his own, less favorable, i.e. worse (market) conditions. Without such an intention, there is in itself no violation of the regulation.
However, it can regularly be assumed that a seller - whose goal is basically to sell his goods - wants to get the customer to buy the product with his deliberately incorrect information.
It can only look different if the seller is not even aware that he is making a false statement to the customer. Then it may be that he has no intention of selling the product to the customer on less favorable terms. Because it could be that he himself believes that his market conditions are favorable. It therefore depends on the individual case.
The clause will be explained again in a short example.
- Thorsten finally wants to get a new notebook - it should be a chic, small netbook. To do this, he drives to the area's largest electronics store and gets advice.
- The employee shows him the latest models and Thorsten immediately falls in love with a current model from an Asian manufacturer that is available for purchase at a price of 379 euros.
- Unasked, the employee brags that buying the netbook is a good deal because Thorsten can't get it anywhere in the area as cheaply as there. With the statement he wants to persuade Thorsten to finally buy the netbook.
In fact, the small but fine specialist dealer Elektro Müller-Schulz, valued by its regular customers, is selling the netbook for the same price.
The case is very clear: the employee of the electronics store (and thus the electronics store) violates the black clause No. 19. Because the information given by the employee Thorsten is wrong, because the product is just as cheaply available elsewhere. It is irrelevant whether the employee knew this. It (probably) only depends on the fact that the seller wanted to persuade the customer to buy his products with the statement.
Black Clause No. 19 concerns the protection of the ambivalent relationship of trust between customers and sellers. If a seller lies in relation to the market conditions - especially the price - of a product, the competitors can use the weapons of the UWG to counter it.
However, it is questionable whether the competitors - apart from the possibility of test purchases - can even find out about any violations of the clause. It may be the consumers themselves who have to involve the consumer associations, which are also entitled to claim, so that violations can be punished.
Ultimately, it remains to be seen whether only verbally spread lies can be proven. It is more likely that in the end only written statements from entrepreneurs such as posters and sales brochures can be checked for violations - because there are no problems with evidence.
(Image: © Butch - Fotolia.com)
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