LIABILITY FOR THE ACCIDENTAL LOSS OR DETERIORATION OF GOODS IN E-COMMERCEDoes anything change if the customer issues a so-called deposit permit?

Numerous delivery services now allow customers to specify a drop-off location where the supplier will deposit ordered goods, rather than having to accept goods themselves. If everything works well, this is a practical solution for both the delivery service and the customer, but it gets tricky when the supplier says the package will be left at the drop-off location, but the customer can’t find it there. In such cases, customers usually contact the seller whose goods have allegedly not arrived. And then? Is the seller responsible for ensuring that the goods reach the hands of the customer? Has the responsibility passed to the delivery service when the parcel is abandoned, or is it even the customer’s responsibility if he or she has given the delivery service permission to drop off the parcel?

As is often the case, the question cannot be answered in the same way for all cases. In principle, the transfer of risk in the case of sale by delivery to a place other than the place of performance is initially regulated in § 447 BGB. There it says in para. 1. „If, at the Buyer’s request, the Seller ships the sold item to a place other than the place of performance, the risk shall pass to the Buyer as soon as the Seller has delivered the item to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.” Thus, for the time being, a parking permit is irrelevant to this case. In principle, the risk is already transferred to the buyer when the item is handed over to the delivery service.

The situation is different, however, if the buyer – as is relatively common in e-commerce – is a so-called consumer (§ 13 BGB). This is because if a consumer is involved, the provision of Section 474 of the German Civil Code (BGB) applies to the purchase of consumer goods, and thus also the provision of Section 475 para. 2 BGB: “Section 447(1) shall apply with the proviso that the risk of accidental loss and accidental deterioration shall pass to the buyer only if the buyer has entrusted the forwarding agent, the carrier or the person or institution otherwise appointed to carry out the shipment and the contractor has not previously designated such person or institution to the buyer.“The case described here should not be the case in most online purchases: Not the buyer orders the delivery service, but the seller. The risk of accidental loss or deterioration shall thus initially be borne by the seller in the case of the sale of consumer goods, namely until the buyer has actually taken possession of the goods.

Nevertheless, the question remains as to what effect the granting of a parking permit by the buyer to the delivery service has on the transfer of risk and thus, if applicable, on the purchase contract. It should be noted here that the seller will usually have no influence on such parking permits, nor will he even be aware of them – at least as long as there are no problems with delivery. Such a parking permit, against the background of the relativity of the debt relationship, has no effect on the purchase contract as such, therefore the seller is affected by the resulting problems. The Seller may refuse further obligation to indemnify in the case of a delivery permit only if he can show and prove that he handed over the goods to the delivery service, the Customer gave a delivery permit to the delivery service and the goods were also deposited at the place of delivery without any external damage. This is often associated with a high level of effort. This is because, although the statutory provisions may result in the risk of loss having passed to the buyer at the time of deposit at the desired location, if the buyer claims that no deposit was made at the desired location, the seller must prove otherwise and remains liable under the purchase contract – either for redelivery or reimbursement of the purchase price. The seller is dependent on the cooperation of the delivery service to provide evidence. Only this person can provide information about the parking permit and prove that delivery was made at the desired location. If this is not the case, the seller could only assert recourse against the delivery service in the internal relationship. But here, too, the seller would have to be able to demonstrate and prove that the delivery service was responsible for the damage. The evidence situation is thus extremely unfavorable for the seller and, in the worst case, leads to conflicts with the buyer and also with the delivery service, which e-commerce companies should always be aware of and which makes proper claims management indispensable.

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Matthias SchulzSenior Sales Manager

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