Purchase contract (Germany)

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The purchase contract is a standardized type of contract of the German law of obligations on the agreement of the contracting parties on a purchase item. Objects of purchase can be things , rights , claims or other asset items. The purchase price payment is synallagmatic to this . The purchase contract is the most common sales transaction in the economy .

General

The purchase contract comes into existence through the corresponding declarations of intent , namely through offer and acceptance . The buyer and seller act as contracting parties . With the purchase contract, the seller undertakes to permanently transfer the object of purchase to the buyer. In return, the buyer has the obligation to pay the purchase price and to accept the purchase item . The purchase contract is regulated in § 433 to § 479 BGB . The regulations regulate the general sales law and special forms of purchase. Additional regulations about the purchase of a consumer are contained in § 13 and § 14 BGB. If these regulations do not contain any regulations, additional regulations of the general law of obligations apply.

The historical original form of the sales contract was the exchange contract . Its further development to purchase took place through the introduction of money as a means of payment , which, as a clearing unit of fixed value that can be exchanged at any time, enables sales of goods of a significant size in the first place. The close relationship to the exchange shows § 480 BGB, according to which the regulations on the purchase apply accordingly to the exchange.

History of origin

Historical role models

According to the German legal dictionary , the first evidence for the use of the German compound term “purchase contract” in the sense of a contract of obligations, in which goods are to be handed over for money , can be traced back to the year 1574. The Bohemian state order , dating from May 1627, defined as follows: "By purchase agreement and contract all lordship / property and other justice are left".

The General Prussian Land Law (APL) of June 1794 decided in the provisions on "buying and selling transactions" (I 11, §§ 1 ff. APL) also for the designation purchase contract, such as in §§ 232, 249, 271 APL, but also contained the “purchase contract” in Section 219 APL. The provisions of the Baden Landrecht of January 1810 on things for sale (sentences 1598 ff.) Mentioned neither the sales contract nor the sales contract, but sentence 484 contained the expression sales contracts. A trade encyclopedia from 1857 clearly differentiated exchange and purchase: “A sales contract is the agreement between two persons or parties by which one (the seller) makes himself binding, the other (the buyer) something that she likes physically or be incorporeal, already existent or not, for the payment of a price fixed in money. The last point distinguishes the purchase from the exchange, in which the consideration also consists of one thing ”.

Development of the BGB sales law

The BGB, which came into force in January 1900, made the purchase contract the most important type of contract under the law of obligations and mentions it in its legal system as the first of the individual obligations . When designing sales law, the authors of the BGB were strongly based on Roman law , which was dominated by pandect law in the 19th century. The first consumer protection reforms were brought about by the General Terms and Conditions Act that came into force in April 1977 , which was intended to reduce the risk of being overreached by general terms and conditions.

New regulation through the reform of the law of obligations

The law of obligations reform , which came into force on January 1, 2002, resulted in a fundamental revision of the sales law . With this , the legislature wanted to implement some European directives , in particular the Consumer Goods Sale Directive of 1999. This directive was intended to achieve a minimum Union-wide harmonization of the warranty law for the purchase of a consumer from an entrepreneur. The legislature used the fact that the implementation of the guidelines required an amendment to the sales law to modernize the entire law of obligations, since many legal scholars viewed sales law in particular as outdated and in need of revision.

The reform of the law of obligations resulted in a fundamental restructuring of the sales law: The previous distinction between the purchase of a certain thing (species purchase) and the purchase of an object that was only determined according to generic characteristics (generic purchase) was abandoned in favor of more general rules. There were also no special regulations regarding the purchase of livestock. The warranty right of the purchase has been aligned with the general right to disrupt performance.

Specifically for the implementation of the consumer goods purchase directive, the legislature added some consumer protection regulations to the sales law with the rules of consumer goods purchase. He added other provisions of the directive to the general sales law with effect for all types of purchases. As a result, he went beyond the minimum regulation required by European law in order to achieve the most uniform possible treatment of sales contracts. Furthermore, the legislature adopted several provisions relating to consumer protection law in the BGB, which were previously regulated in special laws. This concerned, for example, the general terms and conditions law. The short warranty periods that had existed until then were also significantly extended. As a result of these reforms at the latest, the legal principle stemming from Roman law "the buyer should be vigilant" ( Latin caveat emptor ) no longer existed in German sales contract law.

According to Art. 229 § 5 EGBGB, the new regulations apply to sales contracts that are concluded from January 1st, 2002.

Influence under European law

The European legal character of sales law has the consequence that the application of its regulations is influenced by the European Court of Justice (ECJ), which interprets the consumer goods sales directive with binding effect on the member states. Member States must endeavor to apply their national law in such a way that it is in line with the Directive.

The influence of European law on national sales law was shown in the source decision of the ECJ of 2008. There the court found that the directive had not been adequately implemented with regard to warranty law. As a result, the legislature had to adapt the warranty law for consumers, which it did by changing Section 474 (2) BGB.

In the Weber and Putz case of 2011, the ECJ defined the scope of the obligation to supplementary performance, the primary warranty law, and stated that an entrepreneur may not refuse individual forms of supplementary performance due to disproportionate costs if this would deprive the consumer of his claim to supplementary performance as a whole. This was taken up by German case law through a guideline-compliant interpretation of Section 439 of the German Civil Code, which is relevant for the claim for supplementary performance . The BGH limited this interpretation to purchases of consumer goods, with the result that § 439 BGB was interpreted differently for purchases of consumer goods than for other purchases, despite its placement in the general sales law.

2018 reform

With effect from January 1, 2018, the German sales law was revised again. On the one hand, the legislature wanted to implement the Weber and Putz decision. For this purpose, he revised Section 439 of the German Civil Code (BGB) and expanded the scope of the subsequent performance claim in favor of the buyer. On the other hand, by introducing § 445a BGB, § 445b BGB , he wanted to strengthen the seller's legal position vis-à-vis his suppliers in order to compensate for the increased burden on the seller due to the reform.

According to Art. 229 § 39 EGBGB, the new regulations apply to purchase contracts that are concluded from January 1st, 2018.

Conclusion of contract

The conclusion of a purchase contract requires two corresponding declarations of intent, which are referred to as offer and acceptance. These must include an agreement on the essential elements of the purchase, the essentialia negotii . This includes the parties involved, the object of purchase and the purchase price. With the exception of a few cases provided by law the obligation to contract , the parties are free in their determination.

The declaration of intent must be distinguished from the request to submit an offer (Latin invitatio ad offerendum ), which lacks the will to be legally bound for a declaration of intent. This includes, for example, displaying goods in a shop window or online shop.

Object of purchase

According to § 433 BGB, things come into question as objects of purchase . This includes movable and immovable things as well as animals in accordance with Section 90a BGB . In practice, sales contracts are occasionally concluded for items that the seller still has to procure or manufacture . According to § 452 BGB, the purchase of ship structures is also subject to the purchase law. According to § 453 BGB, rights can also be the subject of a purchase contract, such as claims , co-ownership shares in a thing, residential property , company shares , patents , inheritances and joint heirs . Other items, such as electrical energy, entire companies and business ideas can also be the subject of a purchase contract in accordance with Section 453 of the German Civil Code. According to § 311c BGB, the sale of an item also includes its accessories in case of doubt ( § 97 BGB).

The purchase item can be determined individually or according to general characteristics; then it is a question of a piece or species purchase. But it can also be determined according to general characteristics, such as quantity or quality; then it is a matter of a generic purchase. This distinction was of great importance in earlier sales law; Due to the reform of the law of obligations, both forms of purchase were to a large extent legally equated.

shape

A purchase contract, in particular a purchase contract for everyday life, is usually informal. It can be concluded orally , in writing or through implied action .

For certain types of sales contracts, the legislature prescribes a special form, the violation of which according to § 125 sentence 1 BGB generally results in the nullity of the contract. Thus, according to § 311b para. 1 BGB in the land purchase , the certification of the purchase contract by a notary required. This has a protective and evidence function. Notarial certification is still required in accordance with Section 15 (4) of the GmbHG when purchasing a GmbH share and, in accordance with Section 2371 BGB, for inheritance purchases , which are rare in practice . Finally, the parties can agree that their contract will be concluded in a certain form.

Obligations of the parties

Section 433 BGB defines the performance obligations that characterize a sales contract. These duties are synallagmatic . If one party violates one of these obligations, the other can refuse to perform according to Section 320 BGB or withdraw from the contract .

In addition, both parties have secondary obligations in accordance with Section 241 (2) BGB, Section 242 BGB. These are duties that are intended to protect the other's interests in integrity and the promotion of the purpose of the contract.

Legal mission statement

Pursuant to Section 433 (1) sentence 1 of the German Civil Code, the seller is obliged to provide the buyer with the purchased item. If it is one thing that must he the buyer transfer ownership . When selling a right, the seller must transfer it to the buyer, for example by assignment ( § 398 BGB). According to Section 269 of the German Civil Code (BGB), the place of performance is the place of residence or the place of business of the debtor. § 448 BGB basically allows the seller to bear the necessary costs to hand over the purchased item to the buyer. This can include, for example, transport and connection costs.

According to Section 433, Paragraph 1, Sentence 2 of the German Civil Code (BGB), the item that the seller provides for the buyer must be free of defects. This obligation was expressly laid down in the law through the reform of the law of obligations. In this way, the legislature made it clear that the procurement of a defective item does not constitute fulfillment; In this respect, he joined the fulfillment theory and thus decided the issue under the old law, whether the procurement of a defective object of purchase has fulfillment effect.

The buyer is obliged to pay the purchase price in accordance with Section 433 (2) BGB. This is basically agreed between the parties. However, in accordance with § 315 BGB - § 319 BGB, the parties can also agree that it will be determined by one party or a third party. In certain areas, such as medicine, there are legal requirements for pricing. In addition, the buyer must accept the item offered by the seller, provided that it is suitable for performance. This is an expressly standardized secondary obligation.

The exact scope of the secondary obligations results from the circumstances of the individual case. Typical secondary obligations of the seller include informing the buyer about the purchased item, handing over certificates and other materials related to the purchased item, as well as their proper packaging.

Deviating agreements

By virtue of their private autonomy , the parties are free to deviate from the statutory program of duties. For example, they can agree that the seller not only procures the item for the buyer, but that he also assembles it. Since the assembly is a work performance, there are delimitation difficulties between the purchase and work contract . A sales contract exists if the assembly service is only a minor element, i.e. the focus is on procuring the object of purchase. The same applies to the coincidence of sales contract elements with other contract types. Therefore, leasing, for example, is not a purchase because of the predominant lease component. When buying motor vehicles, it is often agreed that the buyer can pay part of the purchase price by trading in another vehicle. According to legal dogmatism, this is a performance in lieu of fulfillment under Section 364 (1) of the German Civil Code. Incoterms are often used in international goods traffic .

Agreements that differ from the law can not only be made for individual cases. It is much more common in business life that such deviating agreements are contained in general terms and conditions, which are made by a contracting party and included in the contract. There is a risk that the provisions in terms and conditions will all too one-sidedly favor the interests of one party. The legal regulations on general terms and conditions , which can be found in § 305 BGB - § 310 BGB, therefore provide for the ineffectiveness of terms and conditions clauses for certain groups of cases.

Furthermore, the parties can establish secondary obligations. For example, they are free to oblige the seller to examine the object of sale or to advise the buyer or to specify the general information obligation.

The agreement that the buyer acquires the item under retention of title is also of great practical importance when purchasing movable items . This is particularly agreed if the buyer should have the opportunity to use the purchased item before paying the purchase price. By reserving ownership, the seller protects himself in such cases from the risk of the buyer going bankrupt before paying the purchase price . With regard to the legal construction of the retention of title, § 449 Paragraph 1 BGB contains an interpretation rule: In case of doubt, the agreement of a retention of title leads to the transfer of ownership of the object of sale under the condition precedent ( § 158 Paragraph 1 BGB) full payment of the purchase price. The purchaser therefore initially only acquires an expectant right to the purchased item with the conditional transfer . Full ownership is only transferred with full payment. If the buyer does not pay his installments on time, the seller can withdraw from the purchase contract and demand his property from the buyer .

Separation and abstraction principle

A special feature of German law is the separation principle that between the purchase contract as binding transactions and the subsequent change in the law as available business is distinguished. As a result, the purchase contract only establishes the obligation to bring about a change in the law, for example to transfer ownership of a thing or to assign a claim. The change in law itself is not brought about by the purchase contract, but by a separate contract, the transaction in rem. The same applies to the purchase price. When processing a cash purchase, there are therefore three contracts: the contract of obligations under the law of obligations, the disposal of the purchased item and the disposal of the means of payment.

In many other countries, instead of separation, the principle of unity applies, according to which purchase and transfer of ownership form a unit. Two variants are possible:

  • Only the purchase contract allows ownership to pass (purely contractual principle). This variant is implemented by French law in Art. 1583 of the Civil Code , which states: “The buyer acquires property from the seller as soon as both are agreed on the item and the price, even if the item has not yet been delivered and the purchase price has not yet been made is paid. "
  • The handover must be added to the sales contract (unitary principle with handover principle). This solution applies in Austria according to § 1053 ABGB , where it says: “Through the purchase contract, one thing is left to another for a certain amount of money. Like barter, it belongs to the title of acquiring property. The acquisition takes place only when the object of purchase is handed over. The seller retains ownership until handover. "

According to the abstraction principle, obligation and disposition transactions are independent of one another in terms of their effectiveness. It is therefore conceivable that the obligation transaction (purchase) alone is ineffective, while the disposition transaction (transfer of ownership) is effective. The buyer can then have effectively become the owner, but due to the lack of a legal reason (effective purchase contract), there can be a right to retransfer the property from unjust enrichment .

Warranty in the event of defects in the purchased item

If the buyer accepts a purchased item as fulfillment, he is entitled to specific warranty rights against the seller if it turns out that the purchased item was defective when the risk passed .

Concept of deficiency

Sales law differentiates between material defects ( § 434 BGB) and defects of title ( § 435 BGB).

Material defect

According to Section 434 (1) sentence 1 of the German Civil Code (BGB), there is a material defect if the purchased item does not have the quality that the parties want it to have. The jurisprudence understands the concept of quality broadly. In addition to properties, it includes factors that have an external effect on the thing, for example environmental influences and rental income that can be achieved with the thing.

To determine the target quality of a thing, Section 434 (1) BGB provides for a three-stage test program: It is primarily determined by the agreement between the parties. If the parties have neither expressly nor implicitly made an agreement on the quality, the defectiveness of the purchased item is assessed according to whether it is suitable for the contractually stipulated purpose. If there is no such purpose agreement, the decisive factor is whether the purchased item has the quality that the buyer could reasonably expect.

According to Section 434, Paragraph 2, Sentence 1 of the German Civil Code (BGB), it represents a material defect if the purchased item is incorrectly assembled. If the item is intended for assembly by the buyer, incorrect assembly instructions in accordance with Section 434, Paragraph 2, Sentence 2 of the German Civil Code (BGB) constitute a material defect if the buyer is unable to assemble the purchased item correctly.

Finally, Section 434 (3) of the German Civil Code (BGB) evaluates the delivery of another item or an insufficient quantity of the purchased item as a material defect.

Legal deficiency

A defect is in accordance with prior § 435 p.1 BGB if a third party can claim to the goods a right that is not provided in the purchase agreement. Such rights can arise, for example, from liens on property . For a right to constitute a defect, it must be suitable for making it more difficult for the buyer to use the thing.

According to § 435 sentence 2 BGB, it is equivalent to a legal deficiency if a right is entered in the land register that does not exist. The impairing effect of such a right results from the fact that, according to § 891 BGB, the content of the land register is assumed to be correct. Therefore it can be acquired in good faith by third parties according to § 892 BGB . Public-law tax obligations and charges do not represent legal defects in accordance with Section 436 (2) BGB.

Time of the absence of defects

According to Section 434 (1) sentence 1 of the German Civil Code (BGB), the point in time at which the risk is transferred is decisive for assessing freedom from material defects.

With regard to the performance, two dangers can be distinguished: the performance and the price risk . According to § 275 BGB, the obligation to perform does not apply if the performance owed becomes impossible. If the purchased item goes under, the seller is released from his obligation to perform. The buyer therefore bears the risk, referred to as the risk of performance, that he does not receive the object of purchase. If the performance becomes impossible, there is no obligation to provide the consideration in accordance with Section 326 (1) sentence 1 BGB . If the seller cannot provide the buyer with the purchase item due to impossibility, the buyer does not have to pay the purchase price. The seller thus bears the price risk.

The term transfer of risk in purchase warranty law refers to the price risk . It describes the point in time at which this risk passes to the buyer, so that he bears the risk of having to pay the purchase price despite accidental loss or accidental deterioration of the purchased item.

For the purchase of goods, the transfer of risk is generally assessed in accordance with Section 446 sentence 1 BGB. After this, the risk of the price is transferred to the buyer by handing over the purchased item, since the purchased item is in his area of ​​responsibility from this point in time. According to § 446 S. 3 BGB, the transfer is the same if the buyer is in default of acceptance . In the case of sale by mail order , the risk according to Section 447 of the German Civil Code (BGB) is transferred to the buyer when the object of sale is handed over to a person designated for shipment. This is due to the fact that the place of fulfillment lies with the seller according to the legal model ( § 269 BGB). Since this risk also exists if the seller has the purchased item transported by an assistant, the prevailing opinion is that for the application of Section 447 BGB, it does not matter whether the shipping person is a third party or an assistant of the seller. If the transport person is responsible for the deterioration of the item, the buyer can assert his own claims, for example from Section 421, Paragraph 1, Clause 2 of the German Commercial Code (HGB), or via a third party liquidation .

For legal defects, the decisive point in time is the transfer of the object of purchase to the purchaser, as from this point in time it is affected by the foreign law.

The burden of proof for the existence of a defect upon transfer of risk is borne by the buyer in accordance with Section 363 BGB.

An overview of the individual warranty rights

§ 437 BGB gives the buyer several warranty rights. This provision implements Article 3 of the Consumer Sales Directive. The legal norm contains a final list of the possible buyer rights. These take precedence over the rules of the general right to disrupt performance as leges specialis . They also block the possibility of the purchase agreement due to an error on the non-existence of a defect to § 119 para. 2 BGB to challenge .

Supplementary performance

Section 439 (1) of the German Civil Code gives the buyer the right to subsequent performance. This is a modification of the general claim to performance from Section 433, Paragraph 1 of the German Civil Code (BGB), which expires upon acceptance of the purchased item as performance.

The claim for supplementary performance represents the primary warranty right of the buyer: Before the buyer can make use of other warranty rights, he must give his contractual partner the possibility of supplementary performance. This is based on the consideration that a contract should in principle be fulfilled ; it should only be handled in a different way in exceptional cases. As a rule, the seller is therefore entitled to make multiple efforts to ensure proper performance; so he has a right to a second tender.

The claim for subsequent performance exists in two variants, between which the buyer can choose: subsequent improvement and subsequent delivery. In the case of rework, the seller undertakes subsequent performance on the item that he has left to the buyer, for example by repairing it. In the case of subsequent delivery, the seller provides the buyer with a new item suitable for performance. While both forms of supplementary performance are easily conceivable in the case of a generic purchase, legal scholarship is disputed as to whether a subsequent delivery is also possible in the case of piece purchases, since according to the general definition of piece purchase there is only one object of purchase that is suitable for performance. The prevailing view in jurisprudence nonetheless affirms the possibility of demanding subsequent delivery even in the case of piece debts.

According to § 439 Paragraph 2 BGB, the seller bears the costs of the subsequent performance. The jurisprudence sees in this - unlike some voices from legal theory - a basis for claims with which the buyer can claim reimbursement of his own expenses for the removal of defects, such as expert fees. If the buyer has installed the defective item, the seller bears the costs of the removal necessary for the subsequent performance in accordance with Section 439 (3) sentence 1 BGB. This regulation came into force on January 1, 2018 and serves to implement the ECJ ruling in the Weber and Putz case. But it goes beyond that as it does not only apply to consumer goods purchases, but to all types of purchases. Section 439 (3) of the German Civil Code (BGB) enables contractors in particular who are exposed to warranty rights of their customers due to defective materials to take recourse against their suppliers.

resignation

By withdrawing from the contract, the buyer effects the reversal of the sales contract. For this purpose, the purchase contract is transformed into a restitution obligation, which obliges the parties involved to return the services received, including the benefits, in accordance with Section 346 (1) BGB.

requirements

The withdrawal requires a declaration to the other party as a right to exercise according to § 349 BGB .

Furthermore, there must be a reason for withdrawal. Section 437 no. 2 BGB refers to the reasons for withdrawing from the general right to disrupt performance: Section 323 (1) BGB entitles the buyer to withdraw from the contract if the debtor does not properly fulfill his obligation to perform despite a deadline set by the buyer. The requirement to set a deadline is intended to give the seller the opportunity to meet his performance obligation; it thus ensures the priority of subsequent performance. The setting of a deadline in accordance with Section 323 (2) of the German Civil Code (BGB) is dispensable if the seller seriously and definitively refuses supplementary performance without justification, if the parties have agreed on a relative fixed debt and if there are special circumstances that justify immediate withdrawal. Section 326 (5) of the German Civil Code entitles you to withdraw from the contract without setting a deadline if the performance owed is impossible within the meaning of Section 275 of the German Civil Code. According to § 440 BGB, withdrawal is still possible without setting a deadline if the seller justifiably refuses subsequent performance, if it fails or is unreasonable for the buyer.

Finally, resignation cannot be ruled out. Withdrawal is not permitted in accordance with Section 323 (5) sentence 2 of the German Civil Code (BGB) if the defect is insignificant. Section 323, Paragraph 6 of the German Civil Code (BGB) also excludes withdrawal in the event that the buyer is at least predominantly responsible for the circumstance that entitles him to withdraw.

Legal consequences

If the requirements for withdrawal are met, the parties are obliged to return the services received and the benefits derived from them in accordance with Section 346 (1) BGB.

reduction

In the case of a reduction, the buyer keeps the purchased item, but its purchase price is reduced. If the seller has already paid the purchase price, he can claim back the excess amount. The requirements of the right to reduce the price correspond to those of the right of withdrawal in accordance with Section 441, Paragraph 1, Clause 1 of the German Civil Code. The reason for exclusion of the insignificance of the defect does not apply to the reduction, since the purpose of the standard does not match this right of design.

Compensation for damages and expenses

Finally, the buyer can claim damages and reimbursement of expenses from the seller.

damages

The buyer can claim damages both instead of and in addition to the performance. § 437 No. 3 BGB refers to several bases of claims of the general right to disrupt services. In addition to those mentioned there, § 282 BGB and § 285 BGB also apply to warranty law.

Instead of performance

The compensation instead of the performance serves to compensate the disappointed performance interest with a cash payment. § 437 No. 3 BGB refers to three legal norms which can justify a corresponding claim: § 281 BGB, § 283 BGB and § 311a BGB.

A claim for damages instead of performance presupposes that the debtor breaches his performance obligation. This can be done by procuring a defective purchase item, by failing to perform subsequent performance and by making it impossible to procure the purchase item. Furthermore, the buyer must always set the seller a deadline for subsequent performance so that the priority of subsequent performance is preserved.

If the other prerequisites of the respective basis for a claim are met, the buyer can demand compensation for the damage that is the causal consequence of the breach of duty. The buyer can choose between small and large damages. In the case of the former, he keeps the purchased item and demands the difference between its value and the value of his interest in performance. In the case of the latter, he returns the purchased item and receives his entire interest in performance replaced.

In addition to performance

In addition to the performance, the buyer can claim damages in accordance with § 437 No. 3, § 280 BGB if the seller causes damage by breaching an obligation from the purchase contract and is responsible for this. The compensation in addition to the performance serves to compensate for the breach of the integrity interest of the buyer, which results from the defectiveness of the purchased item. This includes, for example, damage to property caused by a defect in the purchased item. There is no need to set a deadline for supplementary performance for this type of compensation, as it covers damage that cannot be remedied by supplementary performance.

It is controversial in jurisprudence whether the additional requirements of Section 286 of the German Civil Code (BGB) must be met for damage resulting from the seller's late performance . § 437 No. 3 BGB does not refer directly to this standard, but to § 280 BGB, which in turn refers to § 286 BGB. According to the prevailing opinion, the requirements of § 286 BGB do not have to be met.

Reimbursement of expenses

According to Section 437 No. 3, Section 284 of the German Civil Code (BGB), instead of compensation, the buyer can demand reimbursement of expenses instead of performance , which he has made in the justified trust in the receipt of the contractual performance.

Right to do yourself

The right to do it himself entitles the obligee to remedy the defect in the object of performance himself and to demand the necessary costs from the debtor. Such a right is provided for in Section 634 of the German Civil Code for the creditor of a work performance and is detailed in Section 637 of the BGB. There are no comparable regulations in sales law. Nevertheless, it is controversial in jurisprudence whether the buyer has such a right. Sometimes it is argued that such a right can be derived from an analogy to Section 326 (2) sentence 2 BGB. According to the prevailing opinion , this is not the case, since the legislature has deliberately decided against a right to self-implementation in sales law. This can be seen in the fact that § 634 BGB, which is structured parallel to § 437 BGB, provides for a corresponding right in the contract for work and services.

Exclusion of warranty

According to § 442 BGB, the statutory warranty is excluded if the buyer is aware of the defect at the time the contract is concluded or is grossly negligent in misjudging it. In both cases the buyer would behave inconsistently if he asserted warranty rights. Therefore these rights are closed to him.

Furthermore, the parties can contractually terminate the warranty. In accordance with Section 444 of the German Civil Code (BGB), however, a corresponding restriction has no effect if the seller fraudulently concealed the defect or assumed a quality guarantee. According to the case law, a further limit arises from the existence of a quality agreement: the seller cannot exclude the guarantee for an agreed quality, since the quality agreement would otherwise be ineffective. In Austria a warranty exclusion is effective - up to the limit of immorality - but does not extend to fraudulently concealed defects.

In accordance with Section 445 of the German Civil Code (BGB), the guarantee is also excluded for items that are sold on the basis of a lien in a public auction under the name of a pledge . This also does not apply here if the seller fraudulently concealed the defect or has assumed a quality guarantee. According to the prevailing opinion, § 445 BGB aims to protect the seller from warranty liability, as he generally does not know the object of purchase and therefore cannot assess its condition.

warranty

With a guarantee within the meaning of § 443 BGB, a party - typically seller or manufacturer - undertakes to ensure that the purchased item has a certain quality or durability, regardless of fault .

By agreeing a guarantee, the parties establish a guarantee contract. This grants the buyer additional rights which he can assert in addition to the claims for defects regulated by law. It is therefore a voluntary addition to the buyer's rights from § 437 BGB. In contrast to the warranty, it does not matter whether the item has a defect when the risk is transferred. The guarantee also establishes rights if the defect only occurs during the guarantee period. In the case of the durability guarantee, it is assumed in accordance with Section 443 (2) BGB that a material defect occurring during the guarantee period justifies the rights under the guarantee. If the issuer of the guarantee wants to avoid claims from this, he must therefore prove that the defect is not due to the condition of the item, but to improper use by the buyer or a random external event.

The seller may attach certain conditions to the guarantee, such as regular inspections in accordance with the manufacturer's instructions in an authorized workshop.

Statute of limitations

According to § 195 BGB, claims generally expire within three years. The limitation period begins in accordance with Section 199 (1) BGB at the end of the year in which the claim arises and the creditor learns of the claim and the debtor.

Notwithstanding this, § 438 BGB provides for a two-year limitation period for warranty claims, which begins with the delivery of the object of purchase to the buyer. This is intended to speed up contract processing. When buying a structure or an object that is typically used for structures, the period is five years because of the great economic value of structures. It is thirty years if the defect lies in a real right of a third party that entitles it to challenge the object of purchase. The thirty-year period corresponds to the limitation period for in rem claims for surrender according to Section 197 BGB.

The shortening of the standard limitation period does not apply in accordance with Section 438 (3) sentence 1 BGB if the seller fraudulently deceives the buyer about a defect, since the seller then does not deserve any protection from the warranty law.

Withdrawal and reduction are not subject to any statute of limitations. According to § 438 Abs. 4 S. 1, § 218 BGB, these rights can only be asserted as long as the claim for subsequent performance has not expired.

Entrepreneurial recourse

If the buyer asserts warranty rights against his seller, the seller suffers a financial loss. If the seller has bought the goods from a supplier, he has an interest in taking recourse against him. Since there is also a sales contract between the seller and the supplier, the seller can assert the warranty rights of the sales law. This is made easier for him by § 445a, § 445b BGB. These rules apply to all sales contracts within the supply chain.

The entrepreneurial recourse was moved to general sales law by the 2018 sales law reform. Previously, it was placed in the section on the sale of consumer goods, as it served to implement Art. 4 of the Consumer Goods Directive. As a result of the postponement, its scope of application should also be extended to those supply chains at the end of which there is no purchase of consumer goods, but rather a contract for work and services. Under the validity of the old law, it was discussed in jurisprudence whether the regulations of entrepreneurial recourse can be applied analogously to purchases other than consumer goods; the case law has rejected this.

Section 445a (1) sentence 1 BGB gives the seller a claim against his supplier for reimbursement of the expenses that the seller had to make towards his buyer. The prerequisite for this is that the thing was already defective at the time at which he acquired the thing.

According to Section 445a, Paragraph 2 of the German Civil Code, the seller does not have to set a deadline for subsequent performance. In the context of the supply chain, there is therefore no right to a second tender, as this would not be in line with interests.

According to Section 445b (2) of the German Civil Code (BGB), the statute of limitations for the seller's claims against his supplier occurs at the earliest two months after the point in time at which the seller has fulfilled his buyer's warranty claims. This is intended to protect the seller from the limitation of his claims against the supplier.

Special forms of purchase

Consumer goods purchase

The regulations on the purchase of consumer goods in the BGB deal with the implementation of the consumer goods directive in German law. After some requirements of the guideline had already been implemented in the general part of the law of obligations and in the general sales law, all that was needed was a few additional regulations that implement the requirements that the German legislator did not want to make for all sales contracts. These regulations can be found in §§ 474–479 BGB. According to Section 474, Paragraph 2, Sentence 1 of the German Civil Code (BGB), they take precedence over the general sales law as more specific regulations.

Scope of the consumer goods sales law

According to Section 474 (1) sentence 1 of the German Civil Code (BGB), a consumer goods purchase occurs when a consumer buys a movable item or an animal from an entrepreneur. If a consumer sells something to an entrepreneur, the rules governing the purchase of consumer goods do not apply. According to Section 474 (2) sentence 2 of the German Civil Code (BGB), this also applies to used items that are sold in a public auction in which the consumer can personally participate.

Modifications of the general sales law in detail

Section 475, Paragraph 1, Clause 1 of the German Civil Code, contrary to Section 271 of the German Civil Code,stipulatesthat the mutual obligations from Section 433 of the German Civil Code are not due immediately, but rather immediately .

Section 475 (2) of the German Civil Code delays the transfer of risk in the case of a sale by mail in favor of the consumer. According to this, the price risk is only transferred to the buyer when the item is handed over to a shipping person if the buyer designates this person without being named by the entrepreneur. If these prerequisites are not met, the transfer of the price risk is based on § 446 BGB. This provision implements Art. 20 sentence 2 of the Consumer Goods Sales Directive.

Section 475 (3) sentence 1 of the German Civil Code (BGB) exempts the buyer from the obligation following Section 439 (5) of the German Civil Code to surrender any uses he has drawn from the defective purchase item in the event of subsequent delivery to the seller. With this provision, the legislature implemented a judgment of the European Court of Justice.

Section 475 (4) sentence 1 of the German Civil Code (BGB) makes it clear that the seller may not refuse the type of supplementary performance chosen by the seller because of disproportionate nature if the buyer thereby loses his right to supplementary performance as a whole. With this regulation, the legislature clarified a conclusion of the ECJ from the Weber and Putz judgment.

Section 475 (6) of the German Civil Code (BGB) grants the consumer the right to claim an advance payment to remedy the defect. The legislature thereby codified the case law of the BGH.

Section 476 (1) sentence 1 of the German Civil Code (BGB) declares contractual deviations from statutory warranty law and consumer goods sales law to be ineffective at the expense of the consumer. According to Section 476, Paragraph 1, Sentence 2 of the German Civil Code (BGB), this also applies to circumvention transactions. This can include agency business in the used car trade. Here an entrepreneur sells a vehicle as a representative of a consumer. According to the prevailing opinion, this represents a circumvention transaction if the entrepreneur bears the economic risk of the contract. Agreements on the shortening of limitation periods may be made in accordance with Section 476 (2), but only with the stipulation that the period is not reduced to less than two years, and for used items, not to less than one year. The aforementioned restrictions do not apply to claims for damages in accordance with Section 476 (3); The parties can freely dispose of these in accordance with the other statutory provisions.

Section 477 contains a simplification of evidence in favor of the consumer: If the buyer makes a claim for a material defect within six months from the transfer of risk, it is assumed that this was already in place when the risk was transferred. The seller must then prove that the item was free of defects when it was handed over if he wants to avoid claims for defects.

If there is a purchase of consumer goods at the end of a supply chain , this has an impact on the entrepreneur's recourse: According to § 478 Paragraph 1 BGB, the reversal of the burden of proof of § 477 BGB also applies in the relationship between seller and supplier. This compensates for the increased liability of the seller towards the consumer. The six-month period begins with the transfer of the risk of price to the consumer. Section 478 (2) BGB limits the supplier's right to shorten the right of recourse at the expense of the seller. If the parties limit the recourse, the supplier must grant the seller an equivalent compensation; otherwise the supplier cannot invoke the restriction.

cash purchase

When cash purchase, the buyer pays the purchase price immediately after receipt of the goods train to train . This is what happens when you buy something at the supermarket checkout.

Credit purchase

Credit purchase is a purchase in which the purchase price is only to be paid after delivery , in particular by granting a payment term or by granting installment payments . Consumer protection is required in this area. This was previously granted by the Payment Act, later by the Consumer Credit Act. Since January 1, 2002, its regulations have been incorporated directly into the German Civil Code (BGB) by the law for the modernization of the law of obligations.

For contracts between an entrepreneur and a consumer, the BGB now contains provisions on deferral of payment of more than three months or other financial aid ( Section 499 (1) BGB), finance lease contracts ( Section 500 BGB) and partial payment transactions ( Section 500 BGB) as protective provisions for consumers . § 501 to 504 BGB). In particular, by applying § 495 Paragraph 1 BGB in conjunction with § 355 BGB, the consumer is granted a right of withdrawal within the period specified there, and by applying § 358 BGB accordingly, this also applies to a consumer loan contract associated with the purchase contract is extended. In the case of partial payment transactions, instead of the right of withdrawal, a right of return can be granted in accordance with Section 356 of the German Civil Code, which can generally only be exercised by returning the goods within the withdrawal period.

Purchase from the developer

When purchasing a property from the developer and at the same time the property developer is obliged to erect a building on the property, there is a contract of its own that contains elements of sales law and contract for work. Here, the liability for defects for the construction work is based on the German Civil Code (BGB). In addition, the Real Estate Agents and Builders Ordinance (MaBV) must be observed.

Purchase on trial

In the case of purchase on a trial basis, the parties conclude a purchase contract in accordance with Section 454 of the German Civil Code under the condition precedent that the buyer approves the purchased item, which is at his discretion. For this purpose, the purchased item is often left to the buyer as a consignment for inspection. According to § 455 sentence 1 BGB, approval can only take place within the contractually agreed period. If the item is handed over to the buyer for the purpose of a trial or inspection, his silence in accordance with § 455 sentence 2 BGB is considered approval.

Purchase after sample ("according to sample")

When buying a sample, the object of purchase is determined by the quality and properties of a sample . The sample must always be free of charge, otherwise it is a purchase as a trial. The larger purchase quantity then delivered must correspond to the sample.

The purchase after trial is no longer regulated separately in the law since the reform of the law of obligations, but is recognized in practice. The possibility of this arises from the fact that the contracting parties are free to determine how they determine the agreed quality of the purchased item.

Purchase on trial

A trial purchase is a regular sales contract for a limited quantity of goods, in which the buyer promises the seller to place a larger order . It is not regulated separately by law.

Repurchase

§ 456 BGB - § 462 BGB regulate repurchases, which are rare in practice. If the parties agree on a right of repurchase, the seller may repurchase the object of purchase from the buyer by means of a unilateral declaration. The original buyer, the reseller, is therefore obliged, subject to thecondition precedent, to transfer the title back against payment of the repurchase price. The repurchase agreement therefore usually serves as security for the seller, such as transfer of ownership and lien .

According to Section 457 (2) of the German Civil Code (BGB), the reseller is liable for damages if the object of purchase deteriorates, goes under or changes significantly before exercising the right to repurchase. If third parties acquire rights to the item, the reseller must remove them in accordance with Section 458 sentence 1 BGB.

Before purchase

A right of first refusal entitles the buyer to conclude an item by unilateral declaration of a purchase contract as soon as the seller sells it to a third party. By exercising the right of pre-emption against the seller, a purchase contract with the same content as with the third party is concluded between the person entitled to pre-emption and the seller in accordance with Section 464 (2) BGB.

The BGB contains contractual and real rights of first refusal . The purchase right regulates in § 463 BGB - § 473 BGB the right of first refusal under the law of obligations. This only binds those who have ordered the right of first refusal. If the buyer exercises his right of first refusal, the seller is bound by two purchase contracts, of which he can only fulfill one. As soon as the seller surrenders the purchase item to one party, he is liable to pay damages to the other party in accordance with §§ 280 Paragraph 1, Paragraph 3, 283 of the German Civil Code. In contrast, the real right of first refusal acts in accordance with Section 1098 (2) BGB like a reservation ( Section 883 BGB) against third parties.

The right of first refusal under the law of obligations arises from a statutory order, such as that contained in Section 577 BGB. It can also be contractually agreed.

Junk purchase (purchase "en bloc")

A larger quantity of goods is sold at a flat rate , the seller does not undertake any quality assurance . Law must be considered, however, to meet separately the purchase agreement every object about is will.

Purchase contracts under the aspect of delivery time

In addition to the above-mentioned types of sales contracts, which differentiate according to type, condition and quality, sales contracts can also be drafted under the aspect of delivery time. From this point of view, four types of sales contracts can be concluded:

In the case of forward purchases, the goods are delivered at an agreed later date or within an agreed period. The clauses read, for example, “delivery within two months”, “delivery at the end of September” or “delivery two months after receipt of order”.

In the case of a fixed purchase, the delivery time is precisely defined. Compliance with the time of delivery is decisive for the effectiveness of the purchase contract. This can only be justified from the substantive necessity of the business. For example, a normal delivery of raw materials to an industrial company cannot be agreed as a fixed purchase, since the raw materials can still be used after the agreed delivery date. This also applies to just-in-time deliveries.

In the case of immediate purchase, delivery takes place immediately after the conclusion of the purchase contract or is taken personally by the buyer.

When buying on call, the object of purchase will only be delivered after the customer has called it up. Mostly this purchase is used on recurring orders. The seller can deliver in full or in part. Example: A company with a large fleet of vehicles collects the gasoline prices from various mineral oil companies and immediately orders delivery over the phone using the tanker truck for the company's own gas station .

Work delivery contract

The subject matter of the work delivery contract is the delivery of movable objects to be manufactured or produced in accordance with § 650 sentence 1 BGB. According to § 650 BGB, the provisions on the purchase contract apply to such a contract, which is related to the contract for work and services with regard to the manufacturing obligation , since the interests of the parties are close to such a contract. If an unacceptable item is to be produced, some work contract provisions apply in addition to Section 650 sentence 3 BGB.

Commercial purchase

A commercial purchase is a purchase in which at least one of the contracting parties is a merchant . For commercial purchases, the special provisions of § 373 - § 381 of the Commercial Code (HGB) apply in addition to the sales law regulations in the BGB .

Destination purchase

In the case of intended purchases according to § 375 HGB, only the type and quantity of the goods are agreed upon when the contract is concluded. Furthermore, the parties agree on a period within which the buyer must specify the goods. If he fails to do so, the seller may make the determination or exercise the other rights specified in Section 375 of the German Commercial Code.

Obligation to give notice

The obligation to notify in Section 377 of the German Commercial Code (HGB) applies to sales contracts and, in accordance with Section 381 (2) of the German Commercial Code, to contracts for work and services that are concluded between merchants. According to this, the buyer must examine the purchased item immediately after delivery. If there is a defect, he must notify the seller immediately, otherwise he will lose his warranty claims. This regulation is intended to accelerate the processing of contracts.

The extent to which the buyer has to check is determined by the nature of the object of purchase and traffic habits. When a larger quantity of goods is delivered, a random sample is typically sufficient, and a test run for a delivered machine. If the error cannot be found during the investigation, but it shows up later, the buyer must then notify the seller of the defect without undue delay in accordance with Section 377 (3) HGB.

If the seller has fraudulently concealed the defect , he cannot refer to the failure of the buyer to examine and complain in accordance with Section 377 (5) HGB. This is based on the fact that a maliciously acting seller is not worthy of protection.

Section 377 of the German Commercial Code (HGB) also applies in the context of corporate recourse, so that recourse is denied to those who have not complied with their obligation to complain.

Company purchase

The object of the company acquisition is a company or a stake in a company. The company acquisition can be processed as an asset deal . Here, the acquirer buys a company's assets, such as production facilities and patents. Depending on the item, it is therefore a purchase in kind or a legal purchase. Alternatively, a company can be bought by way of a share deal . Here, the buyer acquires company shares , such as shares . The share deal thus represents a pure legal purchase.

Sales with international contact

If there is a possible connection to the law of a foreign country in a purchase, international private law decides which law is to be applied to the contract. In the law of obligations according to Art. 3 of the Rome I Regulation, the general rule applies that the contracting parties can freely choose the applicable law. If such a choice of law is not made, the applicable law is determined according to Art. 4 ff. Rome I-VO. According to this, the law of the country in which the seller has his habitual residence applies to sales contracts for movable property, unless the circumstances result in an obviously closer connection to the law of another country, Art. 4 Paragraph 1 a) and Paragraph 3 Rome I Regulation. Special features apply to consumer contracts with foreign contacts according to Art. 6 Rome I-VO.

There is a special feature in international sales. For this is true of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, which for Germany on 1 January 1991 - in the new countries entered into force and another in a variety of countries - already on 1 March 1990 applies in most of the member states of the European Union , in the USA and in Switzerland . The convention is partially abbreviated to UN sales law, the CISG , which goes back to the English term Convention on Contracts for the International Sale of Goods , is probably more common when citing individual provisions of the convention . The UN sales law applies in accordance with Art. 1 Para. 1 CISG to sales contracts for goods between parties who have their place of business in different states, provided these states are contracting states or if the rules of international private law lead to the application of the law of a contracting state. So if the contracting parties agree to the application of German law or its validity results from Art. 4 Rome I-VO, this leads to the application of the UN sales law. Details of the scope of application are regulated in Art. 1–5 CISG. According to Art. 6 CISG, the parties can partially or completely waive the provisions of the CISG.

At the EU level, the development of a common European sales law is currently being discussed, an EU-wide uniform sales law to simplify cross-border sales contracts.

Web links

Wiktionary: Sales contract  - explanations of meanings, word origins, synonyms, translations

literature

  • Hans-Werner Eckert, Jan Maifeld, Michael Matthiessen: Handbook of sales law: the sales contract according to civil law, commercial law and UN sales law . 2nd Edition. Beck, Munich 2014, ISBN 978-3-406-63187-0 .
  • Barbara Grunewald: Sales Law . Mohr Siebeck, Tübingen 2006, ISBN 3-16-148360-X .
  • Klaus Tiedtke, Dietrich Reinicke: Sales law . 8th edition. Carl Heymanns, Cologne 2009, ISBN 978-3-452-26872-3 .

Individual evidence

  1. ↑ Royal Prussian Academy of Sciences (Ed.), German Legal Dictionary , Volume VII, 1974–1983, Col. 668 f.
  2. ↑ Bohemian Land Order, 1627, p. 294 f.
  3. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 226 f.
  4. ^ Association of practical merchants (ed.), Newest Illustrated Trade and Wares Lexicon , Volume 1, 1857, p. 706
  5. ^ Klaus Tonner: Law of Obligations: Contractual Obligations . 4th edition. Nomos, Baden-Baden 2016, ISBN 3-8487-2158-9 , § 5, marginal no. 1.
  6. ↑ Ulrich Büdenbender: § 433 , Rn. 10. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 . Stephan Lorenz: Compensation for breach of duty - an example of the hasty criticism of the law of obligations reform . In: JuristenZeitung 2001, p. 742.
  7. ↑ BT-Drs. 14/6040 , p. 211.
  8. ↑ Christoph Herrmann, Walther Michl: Effects of EU guidelines . In: Juristische Schulung 2009, p. 1065. Carsten Herresthal: The guideline-compliant and constitutional interpretation in private law . In: Juristische Schulung 2014, p. 289. Anne-Christin Wednesday: Guideline-compliant interpretation in the event of excessive implementation . In: Legal Training 2017, p. 296.
  9. ↑ ECJ, judgment of April 17, 2008, case C-404/06 = Neue Juristische Wochenschrift 2008, p. 1433.
  10. ↑ ECJ, judgment of June 16, 2011, cases C-65/09 and C-87/09 = Neue Juristische Wochenschrift 2011, p. 2269.
  11. ↑ BGHZ 192, 148 .
  12. ↑ BGHZ 195, 135 .
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  15. ^ Stephan Lorenz: Basic knowledge - civil law: New regulations in warranty law as of January 1, 2018 . In: Legal training 2018, p. 10 (10–11).
  16. ^ Klaus Tonner: Law of Obligations: Contractual Obligations . 4th edition. Nomos, Baden-Baden 2016, ISBN 3-8487-2158-9 , § 6, marginal no. 1.
  17. ^ Harm Peter Westermann: Before § 433 , marginal no. 8. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
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  19. ↑ On the peculiarities of buying animals Jan Eichelberger, Laura Zentner: Animals in the purchase law . In: Legal Training 2009, p. 201.
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  23. ^ Gerhard Ring: § 311b , Rn. 3. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
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  25. ↑ To this Matthias Schmoeckel: Inheritance law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2878-7 , § 40.
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  30. ^ Wolfgang Fikentscher, Andreas Heinemann: Law of Obligations - General and Special Part . 11th edition. De Gruyter, Berlin 2017, ISBN 978-3-11-036436-1 , Rn. 807
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  37. ^ BGH, judgment of February 17, 2010, VIII ZR 67/09 = Neue Juristische Wochenschrift 2010, p. 1131.
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  40. ^ Katrin Bayerle: Principle of separation and abstraction in case processing . In: Juristische Schulung 2009, p. 1079.
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  43. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations II: Special Part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 6, Rn. 2.
  44. ^ BGH, October 5, 2001, V ZR 295/00 = Neue Juristische Wochenschrift Jurisdiction Report 2002, p. 522.
  45. ^ Christian Berger: § 434 , Rn. 6. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  46. ^ Klaus Tonner: Law of Obligations: Contractual Obligations . 4th edition. Nomos, Baden-Baden 2016, ISBN 3-8487-2158-9 , § 7, marginal no. 3-4.
  47. ↑ Ingo Saenger: § 434 , Rn. 18. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (eds.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
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  49. ^ Louis Pahlow: The legal deficiency in the purchase of goods. In: Juristische Schulung 2006, p. 289.
  50. ↑ Ulrich Büdenbender: § 446 , Rn. 1-2. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 . Uwe Hüffer: Basic cases of risk bearing in the purchase contract . In: Juristische Schulung 1988, p. 123.
  51. ↑ Ulrich Büdenbender: § 434 , Rn. 83. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  52. ↑ Stephan Lorenz: Risk of performance, risk of consideration and place of fulfillment in the sale of consumer goods - BGH, NJW 2003, 3341 . In: Juristische Schulung 2004, p. 105 (106). Johannes Wertbruch: Bearing the risk when buying by mail according to the new law of obligations . In: Juristische Schulung 2003, p. 625.
  53. ↑ Barbara Grunewald: § 447 , Rn. 10. In: Walter Erman (Ed.): BGB . 15th edition. Dr. Otto Schmidt, Cologne 2017, ISBN 978-3-504-47103-3 . Harm Peter Westermann: § 447 Rn. 16-17. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  54. ↑ Andreas Goerth: The Other damage liquidation . In: Juristische Arbeitsblätter 2005, S. 28. Alexander Weiss: The third-party damage liquidation - old and new challenges . In: Juristische Arbeitsblätter 2015, p. 8.
  55. ↑ BGHZ 113, 106 (113).
  56. ^ Christian Berger: § 435 , Rn. 6. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 . Annemarie Matusche-Beckmann: § 435 , Rn. 5. In: Michael Martinek, Martin Schermaier (eds.): J. von Staudinger's commentary on the German Civil Code: §§ 433-480 (sales law) . De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
  57. ↑ Ulrich Büdenbender: § 437 , Rn. 4. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  58. ↑ Barbara Grunewald: Before § 437 , Rn. 3. In: Walter Erman (Ed.): BGB . 15th edition. Dr. Otto Schmidt, Cologne 2017, ISBN 978-3-504-47103-3 .
  59. ^ Harm Peter Westermann: § 439 , Rn. 2. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 . Andreas Spickhoff: The buyer's claim to supplementary performance: dogmatic classification and legal nature . In: Betriebs-Beratung 2003, p. 589.
  60. ↑ Ulrich Büdenbender: § 437 , Rn. 14-14a. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
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