Dispatch blame
The dispatch debt is a legal term from the law of obligations , according to which the place of performance lies with the debtor, because his act of performance lies in the dispatch and the place of success with the obligee. If the performance arrives there, success has occurred. It is already fulfilled at the place of performance / place of fulfillment.
General
It is to be distinguished from the so-called debt to collect , the statutory rule for services (cf. § 269 Paragraph 1 BGB), and the debt to bring . It is typical of the blame that the place of performance and the place of success fall apart. The debtor uses a carrier (e.g. post office) to effect the service.
Monetary debt
Until now, the prevailing view in literature and jurisprudence has been that, according to Section 270, Paragraphs 1 and 4, Section 269 of the German Civil Code (BGB), the monetary debt is a qualified dispatch debt, in which the debtor only bears the risk of loss. In the purchase contract , the buyer only had to bear the risk of transferring money, not the risk of delay (e.g. in the case of a bank transfer ).
Directive 2011/7 / EU of the European Parliament and the EU Council of February 16, 2011 on combating late payment in business transactions and a ruling by the Court of Justice of the European Union (ECJ) in April 2008 caused legal uncertainty in Germany . Until then, the rule was that the debtor had to transfer the money debt to the creditor at his place of residence at his own risk and expense ( Section 270 Paragraph 1 BGB ); in the case of commercial operations as the creditor, the place of business or the place of establishment is the place of payment (Section 270 Paragraph 1 BGB ) . 2 BGB).
In October 2016, the Federal Court of Justice (BGH) decided that the debtor must have done everything in good time that is required at the place of performance in order to satisfy the obligee; the success of the service - the crediting of the transfer amount to the payee account - is no longer part of the debtor's performance. In this ruling, the BGH confirmed that neither the EU directive nor the ruling of the ECJ would change anything for the consumer as a debtor. In business transactions between companies ( business-to-business ) or with public administration ( business-to-administration ), however, the debtor's payment must be regarded as late if the obligee cannot dispose of the amount owed in good time; the amount owed must have been credited to the obligee's account in due time. Contracts with consumers are not subject to the scope of this EU directive. According to its objective, an extension to consumers is not desired, because Recital 8 of the EU Directive provides that its scope of application should be limited to payments made in exchange for commercial transactions and should not include transactions with consumers. The ECJ ruling also relates exclusively to companies.
meaning
The importance of the obligation to send lies in the area of sales contracts in which the contracting parties do not meet in person (e.g. distance sales contracts , mail order business ) and has increased sharply in recent decades as a result of the emergence of e-commerce (online shopping) . The obligation to send is legally relevant in particular with:
- Transfer of the risk of performance (transfer of risk): With the handover to a properly selected transport person, the obligation to perform is limited to the item handed over (so-called specification ), Section 243 (2) BGB. Even if there was originally a generic debt ( § 243 Paragraph 1 BGB), the seller is released from his obligation to perform due to impossibility ( § 275 Paragraph 1 BGB) if the item goes down after delivery . The buyer cannot demand the performance of another item of the same kind. An exception to this, however, is in accordance with Section 270, Paragraph 1 of the German Civil Code, monetary debts as qualified dispatch debt. According to § 270 Paragraph 1 BGB, the debtor bears the risk of performance until arrival. If the money does not arrive despite shipping, the debtor has to pay again. Since the implementation of the Default Payment Directive by maintaining Section 270 of the German Civil Code (BGB), only consumers are doubtful as to whether the term `` qualified fault '' should be adhered to; in the case of companies, the monetary debt is an obligation to bring. In the case of monetary debts, it can only be specified in accordance with Section 300 (2) BGB.
- Transfer of the price risk : According to the statutory rule, the price risk is also transferred when the goods are handed over to the transport person, Section 447 (1) BGB. If the thing goes under, the buyer does not receive the purchased thing, but is nevertheless obliged to pay the purchase price. An exception is made to this regulation to protect the consumer, Section 475 (2) BGB.
Special problems can arise from the fact that, in the case of the obligation to deliver, the performance of the act by the obligee and the transfer of ownership of the thing to the buyer can differ in time. Before the introduction of the rules for the sale of consumer goods in the German Civil Code ( BGB) and Section 421 (1) Sentence 2 HGB , this was an important area of application for third-party claims liquidation . Furthermore, it is controversial whether a dispatch debt can also exist if the debtor uses his own assistants as transport persons instead of a third party .
Individual evidence
- ↑ BGHZ 44, 179
- ↑ BGH NJW 1964, 499
- ↑ Directive 2000/35 / EC of June 29, 2000, Official Journal L 200, p. 35 (PDF)
- ↑ ECJ, judgment of April 3, 2008, Az .: C-306/06, Coll. 2008, I-1923 Rn. 28: 01051 Telecom GmbH / Deutsche Telekom AG: Full text , accessed on July 11, 2017
- ↑ BGH, judgment of October 5, 2016, Az .: VIII ZR 222/15
