DE: Advance on transport costs due to subsequent performance

May 27, 2022 Benn-Ibler Rechtsanwälte

According to the German Federal Supreme Court (Bundesgerichtshof, BGH), a valid request for subsequent performance by the buyer requires that the object of sale be made available at the place of delivery of the subsequent performance. The buyer is entitled to an advance payment for any transport costs incurred. However, such a claim does not apply if the seller is prepared to collect the purchased item and transport it to the place of delivery free of charge for the consumer.

The plaintiff demanded repayment of the purchase price and reimbursement of expenses for veterinary costs and riding equipment from the seller of her damaged horse. Two months after the purchase of the horse, she complained about the existing damage and set a deadline for the rectification of the damage. The seller agreed to rectify the damage. He also offered to collect the horse, but the buyer refused. Instead of collecting the horse, she demanded an advance on the transport costs in order to carry out the transport herself. However, the seller refused. After expiry of the rectification and advance payment period, the buyer declared her withdrawal from the purchase contract on September 4, 2019. In a letter dated December 2, 2019, she repeated the declaration of withdrawal and was of the opinion that setting a deadline was unnecessary due to a final and serious refusal to perform.

The lawsuit failed in the lower courts. The letter of September 4, 2019 did not constitute an effective withdrawal from the purchase contract. No unsuccessful period for subsequent performance had been set, because the horse had not been offered in such a way that the seller could have made use of his right to subsequent performance. The Senate agreed with these statements.

Although the buyer had set a deadline for subsequent performance before declaring her withdrawal, she had deprived the seller of the opportunity for subsequent performance by refusing to allow the seller to collect the horse and making her own transport dependent on the payment of an advance on transport costs. Moreover, an advance on transport costs could not be demanded if the seller - as in this case - was prepared to collect the object of sale free of charge for the consumer and to transport it to the place of delivery.

BGH, VIII ZR 109/20 (30.03.2022)