Free House
“Free domicile” (or “carriage paid”, “carriage paid”) is a trade term and postage between merchants , according to which the supplier bears the entire transport costs to the recipient of the goods.
General
Such trade clauses such as “free delivery” fall under the “habits and customs” of Section 346 HGB , which only apply to commercial transactions between merchants. In the case of non-merchants (e.g. consumers ), such trade clauses are only applicable if they take part in trade like merchants and are familiar with these trade customs. Among merchants, this postage obliges the seller ( exporter ) to bear all costs up to delivery at the final destination.
Legal issues
According to Section 420 Paragraph 1 of the German Commercial Code , the freight must be paid upon delivery of the freight. Pursuant to Section 421 (1) of the German Commercial Code (HGB), the recipient is entitled, after the cargo has arrived at the delivery point, to demand that the carrier deliver the cargo to him in return for compliance with the obligations under the freight contract. Unless otherwise agreed, the recipient must pay the freight resulting from the consignment note in accordance with Section 421 (2) HGB . Who bears the transport costs results from the freight contract or the delivery conditions . If, according to this, the transport has to be “free domicile”, “free” or “carriage paid”, the recipient is not obliged to pay, the recipient is not liable for the freight costs. According to German commercial usage, “free domicile” means that the seller bears the freight costs to the buyer within the framework of a qualified shipping obligation , but not also the transport risk .
“Free domicile” therefore says nothing about the transfer of risk . If a shipping obligation is agreed, the risk of accidental loss passes from the seller to the buyer as soon as the goods are handed over to the first carrier or forwarder . The carrier or forwarding agent is liable in the event of loss or damage to the goods in accordance with the statutory provisions (§§ 407-450 HGB), but as a rule only up to the legally determined liability limits ( generally 8.33 SDR per kg gross weight according to § 431 HGB). If the goods are lost during transport, the carrier is usually liable, but the additional damage must then be borne by the buyer (or his transport insurance ).
“Free domicile” also says nothing about the place of performance. “Free domicile” does not mean that the carrier has to unload the goods. If the seller also takes on the customs duty ( English duty paid ), the trade clause is comparable to the Incoterms clause DDP ( English Delivered Duty Paid ), provided that the seller also pays the unloading fees at the destination. If the named destination has been agreed upon as the delivery clause of the Incoterm DDP ("delivered duty paid") for an international purchase of goods, the application instructions of the International Chamber of Commerce (ICC) should generally be used for the meaning of the clause . Thereafter, the seller has to fulfill the owed delivery at the named destination as an obligation to deliver. "Open House" has the same American usage of advance ( English prepaid ).
What is overlooked is the fact that particularly damaging loading and unloading is not regulated in German sales law and is also not subject to any clear contractual regulation due to the “free delivery” clause. In addition, according to German law it is determined that, without further contractual agreement, there is an obligation to collect ( § 269 BGB ; and not an obligation to bring or send). Accordingly, without a special agreement, the transport costs (and packaging) are to be borne by the buyer of the goods. If an obligation to send is agreed, however, the risk of accidental loss passes from the seller to the buyer as soon as the goods are handed over to the first carrier. The sale by mail order is regulated in §§ 447 and 448 BGB.
The agreement "free domicile" clearly regulates who bears the costs of the transport; namely the seller. If, for example, “free domicile” is noted as the delivery condition on a delivery note , it can be agreed between the contracting parties that the price risk only passes to the buyer when the goods have been handed over at their destination.
In contrast to home delivery, the delivery can also factory , freight collect or freight prepaid done.
International
The Incoterms contain the international rules regarding transport, insurance and customs costs. In addition, the Incoterms also make statements about the transfer of risk.
See also
literature
- Adolf Baumbach / Klaus J. Hopt, HGB - Commentary , 35th edition 2012, Verlag CH Beck
- Gerhard Kühn and Helmut Schlick, The Compendium of Industrial Clerks General and Special Economics , 2012, Verlag EINS, Cologne
Individual evidence
- ↑ Roland Leuschel / Joachim Gruber, Commercial Law , 2000, p. 84
- ↑ Georg Walldorf (ed.), Gabler Lexikon Auslandshaben , 2000, p. 227
- ↑ Christiane Speckmann, The liability of the sub-carrier towards the recipient and other third parties , 2012, p. 99
- ↑ Christiane Speckmann, The liability of the sub-carrier towards the recipient and other third parties , 2012, p. 99
- ↑ Stefan Bretthauer, German and international commercial law , 2007, p. 187
- ^ Franz Schlegelberger / Wolfgang Hefermehl , Commentary HGB , 5th edition, 1974, § 346 margin no. 72
- ↑ OLG Düsseldorf, TranspR 1989, 10, 12
- ^ Eggert Winter (ed.), Gabler Lexikon Recht in der Wirtschaft , 1998, p. 383
- ↑ BGH, judgment of November 7, 2012, Az .: VII ZR 108/12 = BGHZ 195, 243
