Online Auctions: Does 'Ebay' & Co. Provide New Tasks to Lawyers?

Abstract

Commentators tend to consider the topic they are dealing with to be idiosyncratic. This is particularly true with respect to topics involving new technology. This paper examines the truth behind this statement with respect to online auctions, as exemplified by the auction platform ebay and others. This paper argues that online auctions exhibit few idiosyncratic characteristics with which cannot be dealt under contemporary contract law. The legal questions considered in the context of online auctions have been considered for decades under the general provisions for digital and general contract law, as established under the German Civil Code (Buergerliches Gesetzbuch). The fact that legal traditions offers solutions to the problems that new technologies bring about does not mean that new rules could easily (and should) transfer traditional methods into the digital age. This paper explores this argument, using examples from the German draft law on the communication among institutions and parties involved in legal proceedings (Justizkommunikationsgesetz) and recent German cases. As rapid change has become part of lawyers' day-to-day work, sometimes regulatory passivity furthers both the more efficient and the just decision. At least, regulatory passivity avoids the risk that the legislature blurs, rather than clarifies, the current legal situation by activist steps made under populist motives. Sometimes wisdom comes along with waiting.