The Federal Court of Justice (BGH) has made a decision on the question of where the seller of a defective item must carry out the subsequent performance owed to remedy the defect.
The plaintiffs, who reside in France, purchased a new folding camping trailer from the defendant, who is based in Polch (Germany). The order confirmation stated "Delivery: ex Polch, self-collector". Nevertheless, the defendant delivered the trailer to the plaintiffs' place of residence, who used it on a holiday. Subsequently, the plaintiffs complained about various defects and requested the defendant, setting a deadline, to collect the folding trailer and remedy the defects. After this had not happened by the end of the deadline, the plaintiffs declared their withdrawal from the purchase contract. In their action, the plaintiffs sought repayment of the purchase price plus interest concurrently with the return of the folding trailer and reimbursement of legal fees. The Koblenz Regional Court essentially upheld the action. On appeal by the defendant, the Koblenz Higher Regional Court dismissed the action.
The plaintiffs' appeal against this was unsuccessful. 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 in the absence of a special provision in the law of sales, the place where the seller has to render the supplementary performance owed by him is determined according to the respective circumstances of the individual case pursuant to § 269 para. 1 BGB* if - as in this case - overriding party agreements have not been made. These circumstances include the local nature and the type of performance to be rendered as well as the extent of the inconvenience which the subsequent performance entails for the buyer. The latter follows from the requirements of the European Consumer Sales Directive, according to Art. 3(3) of which supplementary performance must be carried out without significant inconvenience to the consumer. Since the rectification of the defects of the folding camping trailer complained about by the plaintiffs requires the use of trained personnel and workshop technology and a transport of the trailer to Polch or its organisation seems reasonable for the plaintiffs, the place of performance of the rectification is the defendant's registered office. The plaintiffs would therefore have been obliged to take the trailer there to carry out the subsequent performance. As long as this does not happen, the plaintiffs have no right to withdraw from the purchase contract.
*§ 269 BGB: Place of performance (as of 13.04.2011)
(1) If a place for performance is neither determined nor can be inferred from the circumstances, in particular from the nature of the debt relationship, performance shall be made at the place where the debtor was domiciled at the time the debt relationship arose.
(2) If the liability arose in the debtor's business, the place of business shall take the place of the domicile if the debtor had his business establishment at another place.
(...)
Judgment of the BGH of 13 April 2011 - VIII ZR 220/10
Lower courts:
Koblenz Regional Court, judgement of 3 June 2009 - 8 O 277/08
OLG Koblenz, judgement of 16 July 2010 - 8 U 812/09
(published in ZGS 2010, 570 f. = DAR 2011, 84 f.)
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
