Unordered delivery (Germany)
An unordered delivery occurs when an entrepreneur sends goods to a consumer or offers other services that the consumer has not ordered, i.e. they are received without an attributable request.
General
As a rule, the consumer only receives goods that he has previously ordered . However, some companies had taken advantage of a situation that was not regulated by law and sent goods to randomly selected consumers without prior ordering. In January 2002, the legislature countered this undesirable development with § 241a BGB . Since then, the unsolicited sending of goods to the consumer has no legal meaning. Only consumers benefit from this regulation; the general principles of contract law and the special regulations for merchants in the context of commercial transactions ( § 362 HGB ) remain unaffected. Sending unordered goods or providing unordered services is considered an application under German law .
Core of the scheme
If the requirements are met, the entrepreneur does not acquire any claims against the consumer in accordance with Section 241a (1) BGB. Conversely, there are no obligations for the consumer towards the entrepreneur; in particular, it is not subject to any obligation to return. He doesn't have to react to the delivery either , he can be silent . This applies even if the entrepreneur declares that the purchase contract is deemed to be concluded if the goods are not rejected or returned, or that the consumer undertakes appropriation or consumption actions (these do not apply as acceptance - contrary to the general regulation in Section 151 of the German Civil Code (BGB )).
The consumer does not become the owner , but according to the prevailing opinion, he can use, consume or dispose of the goods as he likes, and he is not obliged to store them . Even if the thing is deliberately destroyed, the recipient is not liable to prosecution (disputed). Although the entrepreneur legally remains the owner of the goods sent, the entrepreneur's right to surrender against the consumer is excluded by law. However, if the recipient sells the goods to a third party who is aware of the circumstances, this third party is obliged to surrender them ( Section 932 (2) BGB, Section 985 BGB). In other words: through purchase in good faith , ownership of goods that have not been ordered can be transferred to a third party.
Exceptions
Exceptions are regulated in Section 241a (2) BGB. Paragraph 2 contains two alternatives. If the consumer is aware (or negligently ignorant) that the goods were sent to him in error, be it through the erroneous acceptance of an order by the company or through erroneous receipt by him as the recipient, the main provision in Section 241a (1) BGB applies Not. This can be the case if the recipient has the same name, for example at the same home address or in the immediate vicinity. The second, for the layman, a somewhat complicated alternative in Paragraph 2 deals with the topic of profit promises. This is about unordered shipments whose order was hidden in a profit promise . If the entrepreneur can erroneously assume from the response (so-called "response element") that the consumer has ordered something, legal claims of the entrepreneur are not excluded with both alternatives.
No claims whatsoever
A majority of the literature concludes from the absolute legal formulation “no claim” that any use, consumption, appropriation or even destruction acts have no consequences for the consumer. This also includes claims for surrender of use and damages against the consumer. The exclusion of any claims is described in the legal justification as a competition law sanction against the entrepreneur and should amount to a donation . With knowledge of the legal consequences of Section 241a (1) BGB, entrepreneurs cannot necessarily infer from the actions of a customer that they want to conclude a purchase contract. Therefore, acts of appropriation and use within the scope of Section 241a (1) BGB do not have the objective explanatory value of an acceptance of a contract. The property of the entrepreneur has to withdraw from the interests of the consumer - who is to be protected from anti-competitive harassment - when goods are not ordered. As an exception, the legislature consciously accepts the permanent divergence of property and possession.
consequences
The consumer is not obliged to do anything when delivering goods that have not been ordered; he can keep them or dispose of them. If, on the other hand, the consumer pays for the unsolicited service, this is generally considered to be acceptance of the contract. If he sends back the unordered goods, the supplier must reimburse the costs incurred ( § 683 BGB). The provisions of Section 241a (2), on the other hand, make it clear that the cases mentioned here do not constitute the sending of goods that have not been ordered and may, under certain circumstances, justify a sales contract.
See also
Individual evidence
- ↑ Heinz Georg Bamberger / Herbert Roth / Hans-Werner Eckert, Commentary on the BGB , 2nd edition, 2007, § 145 BGB marg. 44.
- ↑ Otto Palandt / Helmut Heinrichs , BGB Commentary , 60th edition 2001, § 241a marginal no. 4th
- ^ Eva Graul / Dieter Meurer, memorial for Dieter Meurer , 2002, p. 256
- ↑ Unordered delivery
