Obligation to collect/bring/send
Obligation to collect/bring/send - Holschuld, Bringschuld und Schickschuld
November 09, 2022
The German Civil Code (BGB) recognises different types of debts. A delimitation is important in order to clearly define the code of obligations and the resulting legal consequences for the parties. The differences can be serious. The BGB has three different types of debt: the obligation to collect, the obligation to bring and the obligation to send.
Obligation to collect
An obligation to collect is deemed to exist if the goods are to be collected from the seller. The place of performance and the place of success are at the debtor, the seller. According to the basic concept of section 269 (1) BGB, the debt to be collected is the rule unless the parties agree otherwise.
Obligation to bring
The obligation to bring the good to the creditor's domicile is characterised by the fact that the place of performance and the place of success are "the same", not with the debtor, but with the creditor.
Obligation to send
The obligation to send is a special feature. It is special because the place of performance and the place of success fall apart. This means that the debtors perform their contractual obligation in one place, but the success occurs in another place. Here is an example: Someone orders goods online. It is clear to every online buyer that it is not the seller who takes the goods and delivers them. Instead, the goods are usually delivered by post or by logistics companies.
The seller therefore only has the obligation to hand over the correct goods to the transport company. He/she therefore fulfils "his/her" duty at "his/her" place. However, the owed success, in case of purchase contracts the transfer of ownership of the goods, can not occur at the debtor's place, because the transfer of ownership requires the provision of possession to the creditor. As the transport company is not an owner's servant of the creditor, the creditor only acquires possession of the goods upon delivery to the desired place of delivery. Only then the ownership is transferred to him/her and the success of the purchase contract (transfer of ownership of the goods) occurs. The place of performance and the place of fulfilment are therefore different.
And this is precisely the problem of the obligation to send. Because the debtor who has done everything he/she had to do (in the case of delivering the goods to the transport company) does not violate any obligations if the goods do not reach the buyer - because he/she has never assumed this obligation. The buyer will now bear, unless the purchase of consumer goods is prohibited under sections 474 cont. BGB, the risk of loss or damage to the goods in transit. This results from section 447 BGB.