02. Feb 22

Forged certification of COVID-19 masks – Cancellation of purchase agreement

A forged CE certificate entitles the buyer to cancel the agreement for the purchase of COVID-19 masks. That was the verdict of the Oberlandesgericht (OLG) Frankfurt – the Higher Regional Court of Frankfurt – in a ruling from September 15, 2021 (case ref.: 4 U 66/21).

At the outset of the coronavirus pandemic back in the spring of 2020, masks and other protective equipment were in short supply in Germany. One consequence of these supply shortages was that some merchants began marketing masks and other equipment of inferior equality that did not meet current protection standards or whose certificates were forged. We at the commercial law firm MTR Rechtsanwälte note that it is customers and distributors who have suffered as a result. According to the judgment of the OLG Frankfurt, they are entitled to demand the cancellation of the purchase agreement if CE certification has been forged.

In the case in question, the plaintiff had ordered 80,000 disposable COVID-19 masks, with the seller having warranted that the masks were CE certified. The latter demanded that the purchase price be paid in cash on delivery. The plaintiff complied with this demand, and there was a reference to CE certification on the packaging of the masks delivered. However, this certification notice was missing from the subsequently delivered invoice. The plaintiff therefore requested that they be sent proof of certification. While they did receive a certificate to this end, this turned out to be a forgery from a Polish company. In fact, the masks had not been CE certified.

Accordingly, the plaintiff demanded that the purchase price be repaid for return of the masks. The claim was successful before the OLG Frankfurt, which upheld the ruling at first instance and dismissed the mask supplier’s appeal, noting that the masks were not certified as promised and thus defective.

The Court held that the plaintiff was not required to comply with a deadline for supplementary performance due to unreasonableness, an appropriate descriptor given that the defendant had supplied the plaintiff with a forged certificate following the conclusion of the purchase agreement, resulting in a breakdown in trust.

The ruling is not yet final. Leave to appeal can still be pursued by means of an appeal against the denial of leave to appeal.

Merchants who have been supplied with defective masks or other defective protective equipment over the course of the coronavirus pandemic ought to assert their rights and reclaim their money. Lawyers with experience in the field of commercial law can provide counsel.

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