The Federal Court in a decision dated 03.11.2010 (VIII ZR 337/09) the duty to compensate a consumer for the revocation of a distance contract affirmed and rejected any cuts due to the putting.
background of the decision was a closed in August 2008 purchase agreement for a water bed for the price of 1,265 €. As part of the cancellation was noted that regular filling of the mattress of the waterbed deteriorate and not because the crib is to sell as new. After the water bed was delivered to the purchaser, built on this water bed and the mattress filled with water. He then exercised his right of withdrawal and called the seller to refund the purchase price on. The vendor reported only a partial amount of 258 € and claimed that the bed due to the putting was no longer for sale. Only the heating with a value of 258 € is recyclable.
The district court has granted for repayment of the balance of the purchase price of 1.007 € directed action in the first instance. The district court dismissed the appeal following the seller. Directed against the revision of the seller before the Federal Court had now no success. As a result, the Eighth Civil Division of the Federal Court stated that the buyer may demand the return occurred despite the depreciation of the full purchase price may, if he has examined the goods only. It remains to be noted: A time avowed opposition by the Consumer in the distance contract has the effect that it has received are to be returned by the Parties. As far as the object received has deteriorated or has been destroyed in the meantime, the debtor must pay compensation instead of return. In this case, the consumer must also pay compensation for a pay by the intended putting into use of deterioration caused when he was alerted to the latest on the contract in writing to this consequence and a way to avoid them. The liability for compensation is not, however, if the deterioration due entirely to the examination of the matter is. Since the deterioration was due in this case solely on the examination of the case, the structure of the bed and filling the mattress with water was used to test the revision was rejected.
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