Mail order purchase
The mail order purchase is a contract of sale in which the seller to the buyer's request the shipment of goods to a place other than the place of performance shall or from third parties can be performed. The contrast is floor trading .
General
In floor trading (e.g. supermarkets , vending machines ), the goods are immediately handed over by the seller to the personally present buyer when they are purchased . The place of fulfillment here is the seller's place of business . In the case of this "normal" purchase, the transfer of risk takes place at the point in time at which the seller hands over the item to the buyer: If the item is destroyed or damaged before this transfer , the seller bears the risk and must therefore deliver again, although the buyer only delivers once pays, while the risk then lies solely with the buyer - even if he no longer owns the purchased item or only has it damaged at this point, he must pay. This regulation follows the separation principle in German private law , according to which the conclusion of a purchase contract , the handover of the goods to the buyer and the payment of the purchase price to the seller are understood as separate legal transactions .
In the mail order business ( distance selling and online trading ) , on the other hand, buyers and sellers do not face each other directly, so that the goods have to be transported and there is at least one working day between order and delivery . The buyer, who could also pick up the goods from the seller ( Section 269 (1) BGB ), would like to get the goods more conveniently and agree on their dispatch with the seller. The direct handover that is not possible is replaced by the dispatch of the goods, which the seller takes over himself or - as a rule - has a transport company carried out. Thus, the buyer has the disadvantage that it - unlike the presence purchase - not previously seen the goods and can inspect, but only after their delivery , so usually after the payment of the purchase price . There is also the risk for the buyer that he has paid the purchase price but the goods are not delivered or not delivered free of defects.
In the case of mail order purchases , the seller may commission third parties with the transport of the goods, these are transport companies such as the post office , parcel services , freight carriers (by rail , ship or plane ) or forwarding agents . Although the freight forwarder in the classical sense organized by definition, only the transport (§ § 453 et seq. HGB ), but is in fact often in its own name and for the carrier and then enters himself as executive transports on ( § 458 HGB).
Legal issues
The sale by mail order differs from the "purchase over the counter " by the different transfer of risk , which consists of the risk of performance and the risk of price ( risk of counter-performance). Both relate to the accidental loss of the goods, for example due to their damage , spoilage , loss or theft during transport. The sales law clarifies the distribution of risk, namely at whose expense the accidental loss is. There is the risk for the seller of having to deliver the lost goods again and for the buyer the risk of losing the claim to the lost goods. The law distinguishes between two types of sale by mail, in which the transport risk is borne by the buyer on the one hand and the seller on the other.
Performance risk
The buyer bears the transport risk. For this reason, the seller does not have to deliver again when the goods are sold by mail order. In the case of mail order purchases, the risk of performance is transferred when it is specified, i.e. with proper packaging and delivery of the goods free of defects to the transport company ( Section 275 (1) BGB, Section 243 (2) BGB). At the same time, the price risk is transferred to the buyer with the consequence that he has to pay the agreed purchase price even in the event of accidental loss. The seller is therefore not liable for any fault on the part of the transport company in the event of accidental loss. The delivery purchase in the form of transfer of ownership is only fulfilled when the goods are handed over from the transport company to the buyer. If the goods are lost by the transport company during transport (accidental loss), transfer of ownership to the buyer is no longer possible. Nevertheless, he has to pay the seller the purchase price.
Price risk
By handing over the goods to the transport company, the seller fulfills his obligation to perform under a dispatch obligation ( Section 447 (1) BGB). This provision only regulates the risk of counter-performance ( Section 326 (1) BGB), i.e. the legal question of whether the seller receives the purchase price if the item goes down before it is handed over to the buyer. According to § 447 Paragraph 1 BGB, the buyer must pay the purchase price despite the loss of the goods, although the seller does not have to deliver again according to § 275 Paragraph 1 BGB. The seller is not responsible for any fault on the part of the transport company because he only owes the delivery to the freight forwarder, but not the dispatch by the freight forwarder. Therefore the freight forwarder is not a vicarious agent according to § 278 BGB. Accidental impossibility occurs .
Legal consequences
Thus, the risk of a mail order purchase in the event of the accidental loss of the purchased item lies with equal contractual partners (in the case of mail order purchases from entrepreneur to entrepreneur, English business-to-business ) or from consumer to consumer ( English consumer-to-consumer ) solely with the buyer. He has to pay the purchase price although he did not receive the goods or received them defective. This legal risk , which is unsatisfactory for the buyer , is, however, eliminated in order to protect the buyer in the case of unequal contractual partners ( e.g. business-to-consumer ).
In the event of accidental loss of the goods, the seller then has a basis for claims against the transport company ( Section 429 HGB, Section 461 HGB, Section 502 HGB, Section 823 Paragraph 1 BGB), but no damage . On the other hand, the buyer has damage (because he has to pay without receiving the goods), but no basis for a claim. In such cases, which helps law institute of Other damage liquidation , whereby the seller a claim for damages gets to the transport company and the buyer in accordance with § 421 1 para. 2 HGB is entitled to rights under the contract of carriage to make in its own name against the carrier any. Mail order purchase is the best-known application of third-party damage liquidation.
Exceptions
If the seller carries out the transport with his own personnel and this takes over the assembly at the buyer (e.g. furniture), there is an obligation to deliver , for which the rules of the sale by mail do not apply. The transport risk remains with the seller until handover to the buyer without defects.
According to Section 475 (2) of the German Civil Code (BGB), the transfer of risk according to Section 447 of the German Civil Code (BGB) only takes place in the case of purchase contracts in which either no consumer is involved on either the buyer or seller side or a consumer is only on the seller side, but not on the buyer side. This excludes the purchase of consumer goods where there is an entrepreneur as a seller and a consumer as a buyer. When buying consumer goods, the delivery of the goods to the transport company does not lead to the risk of the price being transferred to the buyer. Rather, the transfer of risk only occurs after the transport with the delivery of the goods to the buyer ( § 446 BGB). When buying consumer goods, the goods travel at the risk of the seller. However, the buyer left the transporter a authorization to deposit that goes Transport hazard also without physical delivery to the buyer.
International
In Switzerland, a distinction is made between distance buying and distance buying . In the case of remote purchase, the seller remains responsible for the delivery - even if he sends the item - until it is held by the buyer or has arrived. In case of doubt, distance buying is accepted. In the case of distance purchases, the purchased item must have been sent from the place of performance (at the seller's) (Art. 74 Para. 2 Clause 3 OR ). Then the buyer bears the price risk, unless the claim to the purchase price goes down with the purchased item: then the price risk lies with the seller. If a sales contract in Austria does not contain any provisions on the type of dispatch, it can be assumed that a buyer tacitly agrees to a customary type of dispatch (train, post, plane or ship) from the outset (Section 429 ABGB ). When the goods in accordance with the contract are handed over to the carrier, the goods are also deemed to have been handed over to the buyer, provided that the buyer has approved the type of shipment (Section 429, 2nd half-sentence ABGB). Ownership of the goods is transferred to the buyer when the goods are handed over from the seller to the transport company. The transfer of risk to the buyer also takes place upon handover from the seller to the transport company.
International sales by mail under the UN Sales Convention are largely the same as domestic. The only special feature is its international reference, which is caused by the fact that the goods are delivered from Germany to abroad ( export ) or, conversely, the object of purchase is located abroad from the buyer's point of view and a domestic buyer is supplied from abroad ( Import ). If the sales contract requires the goods to be transported in accordance with Art. 67, Paragraph 1 of the UN Sales Convention and the seller is not obliged to hand them over to a specific location, the risk is transferred to the buyer as soon as the goods are delivered to the first carrier in accordance with the sales contract is handed over for transmission to the buyer. According to Art. 69 Para. 2 UN sales law, the risk is only transferred to the buyer when the delivery is due and the buyer is aware that the goods are available to him at this location.
See also
Individual evidence
- ↑ Dietmar O. Reich / Peter Schmitz, Introduction to Civil Law: Basics of the BGB - General Part , 2000, p. 192
- ↑ Dietmar O. Reich / Peter Schmitz, Introduction to Civil Law: Basics of the BGB - General Part , 2000, p. 192
- ↑ Jens Petersen, Examination Review General Law of Obligations , 2009, p. 186
- ↑ Wolfgang Fikentscher / Andreas Heinemann, Schuldrecht , 2006, p. 465
- ↑ Arnd Goldt, Property law issues of cross-border mail order sales from an international private law perspective , 2002, p. 34 f.
- ↑ January Heilmann, warranties of the CISG , 1994, p 224
