Emoticon verdict: "Oops 😬" does not change Ferrari purchase contract
A Whatsapp message with the grimace emoji 😬 is not consent to a request from a contractual partner. A defaulting Ferrari dealer is out of luck.
Ferrari SF90 Stradale
(Image: Calreyn88 CC BY-SA 4.0)
Text messages in messenger applications such as Whatsapp or Signal can change contracts, even if written form has been agreed. This is the view of the Munich Higher Regional Court. However, it does not interpret the message "Oops 😬" as the sender's consent to an amendment to a contract. This has implications for the failed sale of a luxury sports car.
On November 19, 2020, a car dealer and an operator of a real estate company agreed on the delivery of a brand-new Ferrari SF90 Stradale with certain equipment features at a total price of 617,917.02 euros: That's 80,000 euros plus tax over list price, which was to flow for speedy fulfillment. The Ferrari dealer's general terms and conditions stipulated that contracts could only be amended in writing. The buyer made a down payment of 59,500 euros. The delivery date was non-binding for the "II./III. The delivery date was announced without obligation for the "second/third quarter" of 2021, with the possibility of a reminder (and thus putting the defaulting supplier in default) only after two more quarters, i.e. at the end of March 31, 2022. Ferraris can drive fast, but apparently come slowly.
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The dealer and customer exchanged information several times via WhatsApp during the waiting period. On September 23, 2021, shortly before the end of the third quarter of the year, the seller then had bad news for his wealthy customer: Delivery would not take place until the first half of 2022. The buyer replied with "Oops 😬" and asked for "at least a confirmation of the order", which he received six days later. The customer responded with the thumbs-up emoticon.
Delivery in May "fits"
In April 2022, the dealer then offered delivery of the Ferrari for May 9 of that year, which the buyer approved with "Fits". When the day arrived, the dealer had more bad news: due to battery problems, the vehicle could not be delivered for an indefinite period of time. The customer then set a three-week grace period until the end of May, finally withdrew from the purchase contract on June 1 and demanded the return of his deposit.
In July, the dealer demanded the full purchase price against delivery of the car in August, but the ex-customer was not interested. A second demand in September for a reduced purchase price of 526,713.04 euros was also unsuccessful. In the end, the dealer sold the considerably delayed vehicle to someone else for 389,000 euros.
In court, the former contractual partners fought over the money. The ex-customer wanted his down payment back, while the dealer demanded a further 44,116 euros to compensate for the loss from the cheaper sale to a replacement customer. His argument: the customer had accepted the extension of the delivery deadline until the end of June via WhatsApp, either by grimacing or by giving a thumbs-up six days later. Therefore, he did not have the right to withdraw from the purchase contract at the beginning of June.
OLG reverses LG
The Regional Court of Munich II (LG Munich II, judgment of 22.12.2023 – 5 O 3532/22) agreed with this interpretation and ordered the non-Ferrar driver to indemnify the dealer. However, the Munich Higher Regional Court (OLG), as the court of appeal, has now reversed the ruling: First, it states that contractually agreed written form can also be fulfilled with text messages, good photos or files with text content that are transmitted via Messenger. The Munich Higher Regional Court thus expressly opposes the legal opinion of some other German courts, such as the Frankfurt Higher Regional Court and the Kassel Local Court, which did not classify messenger texts as written form.
According to the OLG Munich, expressions of intent can also be made using emoticons. These would then have to be interpreted on a case-by-case basis, depending on the context and the parties involved. However, voice messages or videos would not fulfill the written form requirement, the Munich Higher Regional Court also noted, although this is irrelevant in this specific case.
The problem for the Ferrari dealer is therefore not the written form or the use of emoticons per se, but the interpretation of the specific emoticons used. According to the ruling, the grimacing face of September 23, 2021 does not express consent; and the thumbs up of September 29, 2021 did not refer to a desired extension of the deadline, but to the order confirmation sent on that day. The customer therefore never effectively consented to an extension of the delivery period to the end of June 2022, which is why he was able to effectively withdraw from the contract on June 1.
In addition, the OLG did not classify the three-week grace period as too short due to the previous history. The defaulting Ferrari dealer must therefore refund the deposit plus interest and legal costs. The OLG did not allow an ordinary appeal to the Federal Court of Justice.
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