Obligation to send
Obligation to send - Schickschuld
December 14, 2022
Obligation to perform at the debtor’s place of business?
The “obligation to send” is a special case. It is special because the place of performance and the place of success are different. This means that the debtor performs his/her contractual obligation at one place, but the success occurs at another place. 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. Rather, the goods are usually delivered by post or by logistics companies. The seller therefore only has the duty 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 the case of sales contracts the transfer of ownership of the goods, can not occur at the place of the debtor, because for the transfer of ownership the transfer of possession to the creditor is necessary. Since the transport company is not a servant of the creditor, the creditor does not acquire possession of the goods until they are delivered to the desired place of delivery. Only then does the ownership pass 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 success are therefore different. And this is precisely the problem of “the obligation to send”. The debtor, who has done everything he had to do (in this case, handing over the goods to the transport company), does not violate any obligations if the goods do not arrive at the buyer's - because he never assumed this obligation. The buyer now bears the risk of loss of or damage to the goods in transit. This results from section 447 German Civil Code (BGB).
Problem for buyers
This result is not really satisfactory for the buyer. Often the buyer of goods in distance selling has no other option than to have the goods shipped. He/she is therefore virtually at the mercy of the seller and the transport company. As a rule, he/she can not influence the packaging and the choice of the shipping company. Although the damaged buyer can in theory take recourse against the transport company, this results from section 421 of the German Commercial Code (HGB), but breaches of duty by the transport company are usually difficult for the buyer to prove. Under certain circumstances, the seller can take action against the transport company in the context of a third party liquidation or assign this claim to the buyer. However, sellers are often not very cooperative, so that the buyer is left to his own devices.
Purchase of consumer goods
The legislator has also recognised these practical difficulties and has strengthened the rights of the buyer, at least in the case of a so-called consumer goods purchase. If the seller carries out the transaction as an entrepreneur, but the buyer carries out the transaction as a consumer, then the transaction is a sale of consumer goods to which the special provisions of sections 474 BGB cont. apply.
According to section 475 (II) BGB, the provision of section 447 BGB that the risk passes to the buyer only applies if the buyer has chosen the freight company
Moreover, the seller should not have named the freight forwarder beforehand. However, this is regularly the case (as the entrepreneur of only provides a choice between different logistics companies), so that the risk of accidental loss or damage to the item does not pass to the buyer at the time of delivery of the item to the freight company, so that the seller must continue to deliver even if the goods are lost.
Qualified obligation to send for money debts
Money debts are a special type of the sending obligation. Here, too, it is a debt of fate, because the debtor "only" has to transfer the money to his/her place of residence. However, the success does not occur with him/her, but with the creditor, which characterises the fate debt. In the case of money debts, however, section 270 (1) BGB provides for a special feature that makes money debts a "qualified debt to send". According to section 270 (1) BGB, the debtor must transfer the money "in case of doubt at his/her own risk". This means that, unless otherwise agreed between the parties, the place of performance remains with the creditor, but the obligation is "qualified" by the special transfer of risk provision. If the money does not arrive for whatever reason, this is at the expense of the debtor.