Online trading is one thing
Attention during transport! - Your duties as an internet retailer
If goods purchased on the Internet are sent from the retailer to the consumer and are lost on the transport route or only partially arrive, the question arises about the consumer's claims: Can he still demand that the retailer send him the goods (fulfillment) or? reclaim the purchase price? In principle, in accordance with Section 447 (1) of the German Civil Code (BGB), the risk is transferred to the buyer at the buyer's request when the seller hands over the goods to the transport company:
Section 447 Passing of risk in the case of sale by mail
(1) If the seller sends the sold item to a location other than the place of performance at the buyer's request, the risk passes to the buyer as soon as the seller sends the item to the freight forwarder, the carrier or the person otherwise appointed to carry out the shipment Has delivered the institution.
In this way, the buyer would have no claims whatsoever if the goods were lost in transit. In the case of a purchase of consumer goods, however, this regulation does not apply in favor of the consumer in accordance with Section 474 (2) sentence 2 BGB. There it says:
Section 474 Concept of the sale of consumer goods
(1) If a consumer buys a movable object from an entrepreneur (purchase of consumer goods), the following provisions also apply. This does not apply to used items that are sold in a public auction in which the consumer can personally participate.
(2) Section 439 (4) shall apply to the sales contracts regulated in this subtitle, with the proviso that uses are not to be surrendered or to be replaced by their value. Sections 445 and 447 do not apply.
From this follows: If a consumer buys articles from an entrepreneur over the Internet, he has a fundamental right to claims against the dealer in the event of damage or loss of the goods in transit. In particular, the customer can then refuse to pay the purchase price or claim back the purchase price already paid (Section 326 IV in conjunction with Sections 346 ff. BGB). The question, however, is whether the buyer can also sue for the fulfillment of the contract, i.e. the repeated delivery of the goods. The Higher Regional Court (OLG) Hamm denied this (judgment of May 24, 2011, AZ: AI-2 U 177/10) and dismissed the action of a buyer for the repeated delivery of the article.
In the underlying case, part of the goods was stolen by a third party while in transit. The OLG decided that the dealer had done what was necessary by handing over the goods to the transport person. The obligation was thus limited to this specific matter (Section 243 (2) BGB). When selling goods on the Internet, the delivery constitutes a so-called obligation to deliver. In contrast to the obligation to deliver, in which the seller has to "bring" the goods, it is sufficient to hand over the goods to the transport company with the obligation to deliver. And the place of performance in the case of sending debt, i.e. the place where the seller has to fulfill his contractual obligations, is the place of the commercial establishment of the trader (§ 269 Paragraph 1 in conjunction with Paragraph 3 BGB).
§ 269 place of performance
(1) If a place for the performance is neither determined nor inferred from the circumstances, in particular from the nature of the obligation, the performance must take place at the place where the debtor was domiciled at the time the obligation arose.
(3) It cannot be inferred from the fact that the debtor has assumed the costs of the dispatch that the place to which the dispatch is to take place should be the place of performance.
According to the OLG Hamm, nothing to the contrary can be inferred from Section 474 of the German Civil Code (BGB). This provision does not regulate the material risk, but the price risk. Because of the theft, fulfillment by the retailer according to Section 275 (1) BGB had become impossible, so that the retailer was freed from his obligation to perform. He doesn't have to deliver again.
Conclusion: If things get lost during transport or are damaged, dealers do not have to deliver again. The customer can, however, claim back any purchase prices that have already been paid. However, online retailers should still be wary of clauses stating that “shipping is at the buyer's risk”. Because these formulations are not correct, but against the background of §§ 474 Paragraph 2 Sentence 2 in conjunction with 475 Paragraph 1 BGB, anti-competitive and can be duly warned.
Author / source
Lawyer for information technology law (IT law) and internet law
The contribution was made by the Mainz lawyer Florian Decker (Res Media
Law firm for IT and media law www.res-media.net).
Lawyer Decker is a specialist in IT law, Internet law,
Internet criminal law, copyright and domain law.
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