Those involved in a delivery are the supplier as the seller , his customer as the buyer and, if applicable, the transport company commissioned by the supplier . The delivery is a comprehensive process with mostly three phases that begins with the supplier as the unloader for the goods transport and ends with the delivery by the carrier to the buyer. The term delivery includes, on the one hand, as delivery objects, material goods in the form of movable items such as goods, commercial goods or commodities , so that land or rights equivalent to land are not included in a land purchase agreement. On the other hand, delivery requires a local distance between seller and buyer, as is the case with mail order purchases or online trading . If - as in floor trading - the goods are handed over to the seller immediately upon purchase and paid for by the seller in cash (as in the case of a purchase in the supermarket ), this is not a delivery in the narrower sense. The term of delivery is to the sales contract on goods, works contract , certain export transactions (such as multiple delivery contract , installment delivery contract , Teillieferungs- and duration supply contract) beer supply agreement and work delivery contract limit. Transactions involving electricity ( electricity supply contract ), gas , water and heat ( heat supply ) are subject to a certain special status . According to the prevailing opinion , they are treated like a delivery of goods, i.e. under sales law. Services are not “delivered”, they are rendered.
The verb “deliver” on which the noun “delivery” is based is a loan word from Latin . It had the meaning "send, send away" ( Latin liberare ), which today in English deliverables handle ( English delivery ) occurs. As early as 1299, according to the German legal dictionary , the verb “deliver” is attested in a document from the imperial city of Friedberg in Hesse, through which a widow transferred goods from Friedberg, Södel and Melbach to the monastery throne in exchange for a lifelong grain validity . The lexicographer Carl Günther Ludovici defined the delivery as follows in his commercial lexicon as early as 1747: "Delivery ... means ... among merchants the handing over or sending of an ordered ... product". After that, Ludovici limited the delivery to merchants , which was still the case in 1800, but is no longer the case today.
According to German Civil Code , the seller fulfills his obligation by delivery to hand over the object of purchase to the buyer and to provide him with ownership of the object . The transfer of ownership to the buyer is connected with the delivery; exceptions exist in the case of delivery against retention of title. Therefore, under civil law, the delivery requires at least the procurement of property in favor of the customer, as a rule he even acquires property.Paragraph 1, Clause 1 of the
The transfer of risk is also related to the delivery :
- When sale of consumer goods , the seller contractor and the buyer consumer ( English business-to-consumer ). In this case, the seller bears the entire transport risk in accordance with BGB - with the simultaneous exclusion of BGB - up to the actual delivery of the purchased item to the buyer. If the goods were damaged or destroyed in the previous transport route, the buyer does not have to pay for them, and in this case the seller only has the option of having the damage reimbursed by the transporter - a regulation that primarily serves to protect consumers in distance sales contracts .
- In the case of sales by mail from entrepreneur to entrepreneur ( English business-to-business ) or from consumer to consumer ( English consumer-to-consumer ), seller and buyer are equal contractual partners. According to German Civil Code (BGB) , the risk is transferred to the buyer when the goods are handed over to the carrier. The responsibility of the seller for the transport is limited only to handing over the goods properly to the agreed carrier or to the carrier designated by the buyer; if it is subsequently damaged or destroyed in transit, the buyer must still pay the seller for it, but contact the transporter with his claim for damages (from the freight contract according to Paragraph 1, Clause 2 of the German Commercial Code or on third-party liquidation ). He is not entitled to a replacement delivery by the seller.
According to right of withdrawal for certain deliveries of goods.Paragraph No. 2–8 BGB, the consumer does not have a
In accounting , the delivery triggers a goods issue and invoicing for the seller, and a goods receipt for the buyer . When accounting for trade accounts receivable, there is the legal term "delivery and service" in accordance with (2) B II No. 1 of the German Commercial Code. An activation as "Trade and services" comes at the balance sheet date, the supplier only be considered if the buyer by the supplier, a supplier credit was given and delivery has been made. With performance , all intangible purchase objects such as services , rights or energy sold by the entrepreneur are recorded.
Sales tax law
The sales tax law knows the only legal definition of the delivery in Abs. 1 UStG . According to this, the deliveries of an entrepreneur are services through which he or a third party on his behalf enables the customer or a third party on his behalf to dispose of an object in his own name (provision of power of disposal ). The “creation of the power of disposal” over an object refers to the creation of economic, not legal, ownership. Therefore, for example, assignment by way of security is not a delivery, but it is the sale of stolen goods or leasing if the object thereby becomes the economic property of the lessee. Tax law attaches sales tax liability to this tax law delivery term .
In banking supervisory law, the term delivery is used in connection with the sale of securities . For example, Art. 390 (6) Capital Adequacy Ordinance provides that, with the usual accounting procedure, accounting items arising within five working days after the payment or delivery of the securities are not to be taken into account in the risk position value . The rare “effective delivery” of securities concerns the actual delivery of securities and is of no significance today because of the prevailing collective giro system .
Terms of delivery
The supplier can combine delivery conditions with his delivery, which are agreed as general terms and conditions within the framework of the purchase contract. Here, he and the buyer can regulate retention of title in the supplier credit , payment deadline , delivery time , mode of transport and the costs (calculation of packaging , freight and insurance ) and risk distribution of the object of purchase. For example, if a delivery is made with the commercial clause “ free domicile ”, then the seller of the goods pays the transport costs ; if the delivery is " freight collect ", the buyer must assume all delivery costs. International delivery conditions are the Incoterms . If no special delivery conditions are agreed, the statutory regulations apply, according to which goods debts are deemed to be debts to be collected . Because the place of performance is the place of business of the seller according to BGB . If the seller then dispatches the goods on behalf of the buyer, there are dispatch debts , so that goods debts in commercial transactions are dispatch debts in case of doubt.
Delay in delivery
Unless otherwise agreed in sales contracts, the seller must deliver immediately ( (1) BGB). If, on the other hand, a delivery period has been agreed, the supplier must provide its service by the deadline . The delivery period ( English delivery deadline ) is the time that is given to the supplier for delivery due to its delivery conditions. From an accounting point of view, it is the time between the goods issue at the supplier and the goods receipt at the client . The late delivery is delivery delay and occurs when an overdue delivery, nor is the seller's delivery culpably delayed or completely omitted. A delay in delivery is a debtor's delay in which the buyer withdraws from the contract according to BGB and demands compensation for damages ( paragraph 4, §§ 280ff., § 325 BGB) or delivery and possible compensation (damage caused by delay according to § § § 280 Paragraph 1 and 2, in conjunction with BGB). If the delivery date was fixed according to the calendar, a grace period is not necessary (§ 286 Paragraph 2 No. 1 BGB).
delay of acceptance
If the seller delivers in accordance with the contract, there is a default in acceptance if the buyer does not accept the object of sale offered to him as agreed.
In Switzerland , the term delivery is defined differently, which - z. B. for services that are subject to sales tax - can lead to irritation.
SR 641.20, Art. 3d of the Swiss Value Added Tax Act defines a delivery as
- Providing the ability to economically dispose of an object in one's own name;
- Delivery of an object on which work has been carried out, even if this object has not been changed as a result, but has merely been checked, calibrated, regulated, functionally checked or otherwise treated;
- Surrender of an object for use or for use.
- Shipping notification
- Full Container Load (FCL)
- Less than container load (LCL)
- Unordered delivery
- Joachim Gernhuber. The debt relationship , 1989, p. 405
- Otto Palandt , Walter Weidenkaff: BGB Commentary , 73rd edition, 2014, § 433, Rn. 4th
- Ulrike Köbler: Becoming, changing and being of the German private law vocabulary , 2010, p. 274
- Carl Günther Ludovici: Kaufmännisches Lexikon , Volume III, 1747, Sp. 1307
- Johann Georg Krünitz, Friedrich Jakob Floerke, Heinrich Gustav Floerke, Johann Wilhelm David Korth, Ludwig Kossarski, Carl Otto Hoffmann: Oekonomische Encyclopaedie or general system of state, city, household and agriculture , Volume 78, 1800, p 601
- Jörn Littkemann, Michael Holtrup, Klaus Schulte: Accounting: Basics - Exercises - Exam Preparation , 2008, p. 139
- BGHZ 113, 106, 111
- Swiss Federal Law on Value Added Tax