Transfer of risk

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Transfer of risk is a civil law term , which in contract law describes the time at which the risk of deterioration or loss of the owed thing the debtor to the creditor goes. The transfer of risk is of great importance in daily life, especially in sales law .

Legal situation in Germany

A distinction must first be made between the risk of performance and the risk of counter-performance ( price risk ).

Performance risk

In the BGB , danger means first of all the risk of performance , i.e. the risk that the obligee will lose his entitlement to performance if the object of performance goes under. This is the normal case with piece guilt : What no longer exists cannot be achieved - impossibilium nulla est obligatio (there is no obligation to do the impossible). In the case of generic debt , on the other hand, the service can still be provided if one thing goes under: namely with another, similar thing of the genus, according to the principle of genus non perit (the genus does not go under). Thus, the debtor bears the risk of performance: He has to perform again if the thing goes down (differently, of course, if all items of the class have gone down).

This regulation is tough on the debtor. The renewed performance can result in high costs. If he does not have a product of the same type in stock, he even has a procurement obligation. Therefore, the law provides for the specification of the generic debt to the piece debt if the debtor has done “everything that is necessary for the performance”, Section 243 (2) BGB. With this specification, the risk of performance passes to the obligee: If the object of performance goes under, the debtor does not have to perform again.

The determination of what “what is required on his part to perform” depends on the nature of the guilt. At least necessary is the selection and segregation of the thing owed from the class. In the case of an obligation to deliver , the thing must actually be offered to the obligee at his place of residence. In the case of an obligation to send , the item must be handed over to a transport person, and in the case of an obligation to collect, it is sufficient to notify the creditor after the separation that he can now collect the item.

However, even without further specification, the risk of performance will be transferred according to Section 300 (2) BGB if the obligee is in default of acceptance . In most cases, however, there is also a specification, unless the delay in acceptance was effectively justified by a verbatim offer, but the specification is still pending. If one considers § 243 BGB to be inapplicable to the debt due to § 270 Paragraph 1 BGB, § 300 Paragraph 2 BGB also applies to the case that the unaccepted amount of money is stolen from the debtor on the way back.

Risk of consideration

In addition to the question of the obligation to perform, a further problem can arise if a consideration ( payment ) was agreed for the service . In these synallagmatic (or mutual) contracts, the law also regulates what happens to the obligation to provide consideration if the obligation to perform expires due to impossibility or for other reasons.

As a rule of thumb, the BGB in all paragraphs according to § 320 BGB, where it introduces the mutual contract, means this risk of counter-performance by risk .

Basic rule

The law is based on the basic rule that anyone who does not provide a service has no claim to consideration ( Section 326 (1) BGB). In principle, the debtor of the main service bears the risk of consideration or price .

There are, however, important exceptions to the basic rule of Section 326 (1) BGB, in which the risk of consideration passes to the creditor of the main performance: He must therefore provide the consideration without receiving the performance. In the general law of obligations, Section 326 (2) BGB provides that in the event that the creditor of the main performance is solely or predominantly responsible for the impossibility of the main performance, e.g. B. because he had willfully destroyed the thing owed while it was still with the debtor. Even if the obligee is in default of acceptance and the thing goes under during this time, the obligation to provide consideration remains.

Special features in sales law

In the special law of obligations, however, there are numerous special special regulations that take precedence over these general rules. In the case of a sales contract in accordance with Section 446 of the German Civil Code ( BGB) , for example, the transfer of risk generally takes place upon handover . If the buyer, who is the creditor of the main obligation, is in default of acceptance , the risk is also transferred to him. If the thing is destroyed, he still has to pay the purchase price.

In the case of sale by mail order , the transfer of risk already takes place when the item has been sent ( Section 447 (1) BGB), e.g. B. with the handover to the carrier . This applies according to Section 475 (2) of the German Civil Code (BGB), however, does not apply to the purchase of consumer goods : If a consumer orders an item from an entrepreneur , the risk is only transferred when the consumer has received the item. Deviating agreements (e.g. "uninsured shipping only at the risk of the buyer" ) are ineffective according to § 475 Paragraph 1 BGB . As an exception, Section 447 of the German Civil Code (BGB) is also applied to the sale of consumer goods if the buyer has commissioned the freight forwarder, the carrier or the person or institution otherwise assigned to carry out the shipment and the entrepreneur has not previously named this person / institution to the buyer .

The point in time of the transfer of risk also plays a special role in sales law because this point in time is decisive for the fact that the purchased item is free of material defects: "The item is free of material defects if it has the agreed quality at the time of transfer of risk ." ( Section 434 (1) p. 1 BGB). If a material defect only appears after the risk has passed or if the item goes under, the buyer has no warranty claims under § 437 BGB. In the case of consumer goods purchases, however, it is legally presumed in favor of the consumer within the first six months that the material defect already existed when the risk passed. The entrepreneur must prove that the defect only arose after the transfer of risk ( reversal of the burden of proof according to § 476 BGB).

Claims of the buyer from material defects that occurred after the transfer of risk can, however, result from a durability guarantee ( § 443 BGB).

Whether the transfer of risk for law 's shortcomings, the relevant date is controversial absence of an express statutory arrangement. According to another opinion, the procurement of goods, i.e. the completion of the acquisition of property, is decisive.

Individual evidence

  1. ^ Heinrichs, in: Palandt § 243 Rn. 5.