How eBay Shiling Bidding Works

Effectiveness of own bids, so-called "shill bidding"

The parties are arguing for damages on the occasion of an auction carried out by the defendant on the eBay internet platform in June 2013. The defendant offered under the user account "g." with a starting price of 1 € and an auction duration of ten days, a used VW Golf 6 car for sale.

The auction took place on the basis of the applicable eBay General Terms and Conditions at the time (hereinafter: eBay Terms and Conditions).

There it said in excerpts:

"[…] § 10 auction, auction with buy-it-now option, multi-auction and offer to inferior bidders. If a seller places an item in auction format on the eBay website, he makes a binding offer to conclude a contract for this item The provider determines a starting price and a period (duration of the offer) within which the offer can be accepted by bid.

The bidder accepts the offer by submitting a bid using the bidding function. The bid expires if another bidder submits a higher bid during the bid period. At the end of the auction or if the offerer's offer ends prematurely, a contract for the purchase of the item is concluded between the offerer and the highest bidder, [...].Members may not manipulate the course of an auction by submitting bids using an additional member account or by specifically engaging a third party. In particular, the provider is prohibited from placing bids on the offers he has posted himself. [...] "

The auction at issue began on June 20, 2013 at 7.55 a.m. The first bid of € 1 was made by a third party whose name was not known via the user account "h *** 8" (anonymized abbreviation). The plaintiff gave "m." In the course of the first day of the auction period, several bids - starting with 1.50 € - were made, which at times also identified him as the highest bidder. As the only other bidder besides the plaintiff, he participated Defendant in covert form even at the auction by using his additional user account "k *** k" (anonymized abbreviation) to successively submit a series of increased maximum bids, the last time at 12.43 p.m. in the amount of € 17,000. The plaintiff then offered € 17,500 and was the highest bidder when the deadline expired.

In retrospect, the plaintiff learned of the manipulation and requested the defendant to hand over and transfer the vehicle against payment of € 1.50.

Does the plaintiff have the right to the handover and transfer of ownership of the vehicle step by step against payment of € 1.50?

"A) The offer of a vendor declared on the eBay internet platform with the opening of the auction is intended to apply to" someone other "than the vendor to conclude a contract, both in accordance with Section 145 of the German Civil Code (BGB) and in accordance with the eBay conditions set out to explain the contracting process . The offer can therefore only be accepted by a bidder who is different from the provider.

b) The inadmissible bid submitted by a vendor via a second member account for his own offer is ineffective and remains unconsidered in the series of bids submitted. A regular bidder does not have to outperform it in order to become or remain the highest bidder.

c) § 156 BGB does not apply to eBay auctions (confirmation of the Senate judgments of November 7, 2001 - VIII ZR 13/01, BGHZ 149, 129, and of November 3, 2004 - VIII ZR 375/03, WM 2004, 2457 ). "

I A claim of the plaintiff against the defendant could result from § 433 I 1.

1 conclusion of contract

It is questionable whether the parties have signed a purchase contract for the vehicle in the amount of 1.50 € have closed.

2 conclusion of contract

For this, the parties must have concluded an effective sales contract.

a contract conclusion according to § 156

It is questionable whether a contract was concluded through an award. According to established jurisprudence and the prevailing view in the literature, the Internet auction is not an auction within the meaning of Section 156. In particular, the necessary award is missing.

b Conclusion of contract through offer and acceptance

For this, the parties would have to have made related declarations of intent. Whether corresponding declarations of intent are available and what their content is must be determined by way of interpretation in accordance with §§ 133, 157. In addition, in cases of doubt, the terms and conditions of eBay are to be used for the interpretation (interpretation solution).

By starting the auction of the vehicle put up for sale with an initial price of € 1, the defendant submitted a binding offer to sell within the meaning of Section 145 of the German Civil Code (BGB), which was addressed to the person who, at the end of the auction period, was deemed to be the one under Section 148 BGB certain acceptance period would have submitted the highest bid.

Acceptance of the offer could be a bid of € 17,500 at the time the deadline expires. However, this declaration of intent would only be relevant if the previous increase of € 17,000 on your part were effective.

(1) Ineffectiveness according to § 145

“The offer made by the defendant when the auction opened was from the outset only addressed to bidders who were different from him. Because the offer regulated in Section 145 of the German Civil Code (BGB) is, by definition, designed to apply for the conclusion of a contract to "someone other" than the offerer. This corresponds to the common understanding of a contract, which is also required by § 10 Paragraph 1 eBay Terms and Conditions, as at least a bilateral legal transaction in the form of a declaration of consent by two or more people to bring about a certain legal success. A contract therefore requires at least two declarations of consent from various legal entities to be effective (Senate judgment of April 27, 2016 - VIII ZR 323/14, WuM 2016, 341 Rn. 18 mwN; Palandt / Ellenberger, BGB, 75th edition, Introduction of § 145 Rn. 1; Erman / Müller, BGB, 14th edition, introduction to § 104 Rn. 16; Staudinger / Bork, BGB, revision 2015, preliminary to §§ 145 - 156 Rn. 2 ). This requirement of a personal difference between the contracting parties corresponds to the expiry of such an obligation in the event of a subsequent unification of creditor and debtor in one person (confusion; cf. last Senate judgment of April 27, 2016 - VIII ZR 323/14, loc. Cit.). "

Taking into account the eBay Terms and Conditions, Section 10, Paragraph 6, it becomes clear that the offer was only addressed to people who are different from one another. Therefore, the defendant could not be the addressee of its own offer from the outset.

This already results in the ineffectiveness of the own bid. The ineffectiveness also results in the ineffectiveness of the later bids by the plaintiff. The latter did not want to and did not have to outbid the defendant's own bid in order to become the highest bidder.

(2) Ineffectiveness due to eBay terms and conditions?
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The eBay terms and conditions no longer contain a corresponding regulation. Since March 12, 2014, the ban can only be found in the help area ("Rules & Policies").

It is questionable whether the ineffectiveness of one's own bids results from the eBay terms and conditions themselves. While the appellate court assumed that the eBay Terms and Conditions via Section 10 Paragraph 6 Clause 2 in conjunction with Section 4 Paragraph 1 do not provide for the legal consequence of nullity, but rather the warning, usage restriction or account blocking and the bids are therefore effective Rather, the BGH assumes that such a (limited) statement cannot be inferred from the regulation.

Rather, the regulation is limited to stating that such manipulations are not permitted in the course of the auction.

Such an unusual consequence, which an honest bidder should not have reasonably expected, would have required an express statement, combined with a regulation of the associated problems for the further course of the auction.

The relevance of one's own bids does not result from the orientation to § 156 sentence 2. Here it is recognized that the overbid, which would cause the previous bid to expire, does not have to be legally effective, because in the interest of immediate legal clarity (in the case of auctions) the actual one Event is decisive.

When referring to Section 156, however, it must be taken into account that, according to established case law, Section 156 does not apply to online auctions of this type and Section 10 Paragraph 1 Clause 4 eBay Terms and Conditions, Sections 145ff. and does not redraw § 156. For an analogous application, the missing structural comparability of the facts is already missing.

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Ineffectiveness does not result from § 117 either. Here there is already a lack of cooperation between the declaring party and the recipient. In addition, it can be assumed that the other bidder wanted his declaration of intent to be effective. Due to the already established ineffectiveness, an examination of § 162 (analogous) or the challenge of the higher bid was no longer relevant.

This means that the other bids (beyond € 1.50) are ineffective.

3 Intermediate result

The plaintiff accepted the defendant's offer of € 1.50.

4 Invalidity of the contract according to § 138 Paragraph 1

“The purchase contract for the offered vehicle at a purchase price of € 1.50 is not void due to immorality in accordance with Section 138 (1) BGB, regardless of the market value that is well above this amount. Circumstances from which a reprehensible attitude of the plaintiff - with regard to the amount of the submitted bids - could be inferred were not determined by the appellate court - without objection - (cf. Senate judgments of March 28, 2012 - VIII ZR 244/10, loc. Cit Rn. 21; from November 12, 2014 - VIII ZR 42/14, WM 2015, 402 Rn. 9). Apart from the fact that a bidder is not obliged to base his maximum bid on the presumed market value, especially at an eBay auction, because the appeal of an Internet auction is to acquire the auction item at a "bargain price" (Senate judgment of November 12, 2014 - VIII ZR 42/14, loc. Cit. Para. 10), in the event of a dispute, given his last bid of € 17,000, the plaintiff cannot be charged from the outset that he was only willing to pay a price far below the market price. The fact that, according to the auction result, he was able to claim delivery of the vehicle for a rather symbolic purchase price of € 1.50 is based solely on the defendant's unsuccessful attempt to improperly manipulate the course of the auction in his favor. "

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For the same reasons, a correction via § 242 is to be rejected. It is not evident that the seller is worthy of protection. He could have set the starting price much higher and in particular should have omitted his own bids.

III. Result

The plaintiff is entitled to the handover and transfer of ownership of the vehicle step by step against payment of € 1.50 from Section 433 (1) sentence 1.