Accidental downfall
Under the risk of accidental loss , a vague legal concept of the Civil Code (BGB), which is by any party responsible, impossibility of performance to understand. This hazard is basically to § 326 para. 1 sentence 1 BGB until the complete fulfillment of the performance Paid.
scope
The BGB deals with this issue in detail in the law on the purchase contract . Here the rule of § 323 BGB in the purchase contract is restricted in favor of the seller. According to Section 326, Paragraph 1, Clause 1 of the German Civil Code, the seller generally bears the so-called price risk until he has fulfilled his part. The price risk regulates the distribution of risk, namely at whose expense the accidental loss is. With the fulfillment the right of impossibility ends and with it the regulations on the transfer of risk. In some cases, however, the law allows the price risk to pass to the buyer earlier. Transfer of the price risk means that the seller retains the right to consideration in the form of the purchase price despite the (accidental) loss of his service. From the buyer's point of view, it should be noted that he now bears the risk of having to pay the purchase price anyway, although he has not received the object of purchase and can no longer demand anything because the seller has been released from his obligations. With the passing of the price risk, the economic loss now hits the buyer because he has to pay without receiving anything in return.
Transfer of risk upon handover
According to § 446 sentence 1 BGB, the risk of accidental loss and accidental deterioration is transferred to the buyer when the item sold is handed over. The meaning of this provision is evident from sentence 2, because with the handover the uses and burdens of the thing belong to the buyer and the economic success of the sales contract has occurred for him. It is now in his own hands to bear the economic loss if things go down by accident. The seller no longer has physical control and can therefore no longer protect himself against the risk of destruction.
The cases of handover of the object of purchase before transfer of ownership are regulated in § 446 BGB. The main application of § 446 BGB is the sale with retention of title . After the complete transfer of ownership, the seller has fulfilled his performance obligations from § 433 Paragraph 1 BGB, so that the question of impossibility and risk bearing no longer arises. Because what happens to the thing after complete fulfillment no longer affects the seller because the purchase price claim can no longer be deprived of him. It applies that every owner has to bear the risk of accidental loss of property belonging to him.
Mail order purchase
The situation is different with mail order purchases . The risk of accidental loss passes to the buyer when the goods are handed over to the carrier ( Section 447 BGB). According to Section 475 (2) BGB, however, this does not apply to purchases by a consumer from an entrepreneur (purchase of consumer goods), unless the buyer has commissioned the shipping himself and the entrepreneur has not previously named the carrier. This exclusion is based primarily on the fact that the risk of accidental loss of the goods shipped is to be borne by the contracting party that is better able than the other to minimize this risk and to take precautions against the consequences of the damage. In contrast to the consumer, the entrepreneur has more influence on the transport of goods, which is why the consumer should not bear the shipping risk. Therefore the transfer of risk takes place according to § 446 BGB.
A mail order purchase is when the seller sends the purchased item to a location other than the place of performance at the buyer's request. The concept of the place of performance in the sense of § 447 BGB is identical to that of the place of performance, i.e. the place where the debtor has to perform his performance. In case of doubt, this place is the place where the debtor has his place of residence or commercial establishment ( Section 269 (1) BGB). As a rule, the fact that he bears the costs of the dispatch does not change anything (Section 269 (3) BGB). The place of performance is only the domicile or branch of the buyer if the seller has taken on an obligation to deliver. In this case, Section 447 of the German Civil Code (BGB) does not apply, as this provision concerns the obligation to send.
Section 447 of the German Civil Code (BGB) requires that the risk should pass at the moment the seller hands over the item to the freight forwarder, carrier or person otherwise appointed to carry out the shipment. The buyer has to bear the price risk before he gets into possession of the thing. The purpose of this provision is seen by the prevailing opinion in the fact that the buyer (at whose request the purchased item is shipped to a place other than the place of performance) should bear the increased risk of proper fulfillment, in particular that of transport damage and loss. If the item is lost in transit and as a result it becomes impossible for the seller to fulfill his obligation to perform, he retains his claim to the purchase price, in deviation from Section 326 (1) sentence 1 BGB. The legal situation is different, however, if the seller has not observed the due diligence in accordance with the contract when preparing the shipment, which is incumbent on him as a secondary contractual obligation (in particular, selection of the carrier and packaging of the goods). If he culpably violates these obligations and the result is destruction or deterioration of the item, the transfer of risk does not occur because the condition of accidental deterioration or accidental destruction is missing: he is responsible for the impossibility. On the other hand, the seller is not liable for negligence on the part of the carrier, since the seller is not obliged to perform the transport, i.e. the misconduct of the transport staff cannot be attributed to him according to § 278 BGB. According to prevailing opinion, Section 447 of the German Civil Code (BGB) only relates to the risk of transport, i.e. damage that is causally related to the transport. The most common transport risk is an accident caused by negligence by the transport personnel, as a result of which the purchased item is destroyed or damaged.
Situation in other countries
France
The French Civil Code does not differentiate between obligatory business and disposition business . According to Art. 1196 para. 1 C. civ. is the title of an item basically already with contract over, but what gem. Art. 1196 para. 2 C. civ. There are exceptions.
According to Art. 1196 para. 3 sentence 1 C. civ. with the transfer of ownership, the risk of accidental loss passes to the purchaser (so-called res perit domino principle), which u. U. can lead to the fact that a buyer has to credit himself for the accidental loss of the thing and has to pay the purchase price for it even if he has not yet received the thing. However, this principle is contractually mandatory . In addition, this does not apply to purchases of consumer goods in which the consumer only bears the risk of accidental loss after actually receiving the item.
literature
- Hans-Werner Eckert, Jan Maifeld, Michael Matthiessen: Handbook of sales law. The purchase contract according to civil law, commercial law and UN sales law. Beck, Munich 2007, ISBN 978-3-406-48602-9 .
- Palandt : Civil Code . CH Beck, 70th edition, Munich 2011, ISBN 978-3-406-61000-4 .
- Hans-Robert Mezger: Purchase. Exchange. In: The Civil Code. Vol. 2, de Gruyter, Berlin 1978, ISBN 3-11-007692-6 , p. ( Limited online preview ).
Individual evidence
- ↑ Hand commentary on the BGB, singer, § 474 marginal note 6
- ^ Schmidt / Brüggemeier, civil law basic course, 6th edition, CI 2.5.2, p. 180.
- ↑ Palandt / Putzo, § 447, marginal note 1
- ^ Schmidt / Brüggemeier, civil law basic course, 6th edition, CI 2.5.2, p. 181.
- ↑ ZB Palandt / Putzo, § 447, marginal note 11
- ↑ a b c [1]
