In a decision, the Federal Supreme Court dealt with the validity of a shipping and passing of risk clause contained in the general terms and conditions of a furniture mail order company.
The defendant furniture retailer also operates an online shop. The general terms and conditions for the online shop state:
"We owe only the timely, proper delivery of the goods to the carrier and are not responsible for any delays caused by the carrier. "
The plaintiff consumer protection association considers this clause to be ineffective and claims against the defendant for an injunction against its use vis-à-vis consumers.
The Regional Court upheld the action. The Higher Regional Court dismissed the action on appeal by the defendant.
The plaintiff's appeal, which was allowed by the court of appeal, was successful. The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for the law of sales, ruled that the clause does not stand up to a review of its content pursuant to section 307 of the German Civil Code (BGB). As can be seen from the defendant's general terms and conditions, the clause also applies to purchase contracts in which the defendant undertakes to assemble the furniture at the customer's premises. In the case of a contract for the sale of furniture in which the seller is obliged to assemble the ordered furniture at the customer's premises, the nature of the obligation is that of a debt to be discharged at the customer's place of business. This is because in such contracts the assembly of the purchased furniture as a contractually owed service of the seller can only be performed at the customer's premises and it can only be determined there whether the purchased item has been delivered and assembled in accordance with the contract. The clause according to which the defendant only owes the timely, proper delivery of the goods to the camouflage transport company unreasonably disadvantages the customer of such a contract because it deviates from the statutory provision on the place of performance without any objective reason and thereby changes the transfer of risk to the disadvantage of the customer (section 307 para. 1 sentence 1, para. 2 no. 1 German Civil Code). In addition, the clause excludes the liability of the defendant for the fault of the transport company as its vicarious agent; in this respect, the provision also violates the prohibition of clauses in section 309 no. 7 letter b BGB.
Judgment of the BGH of 6 November 2013 - VIII ZR 353/12
Ellwangen Regional Court, judgement of 10 February 2012 - 5 O 234/11
Stuttgart Higher Regional Court, Judgment of 25 October 2012 - 2 U 45/12
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Specialist lawyer for information technology law