BGH VIII ZR 302/02 VIII. Civil Senate VIII ZR 302/02
16 July 2003
Translated by:
Tony Weir
Sir Basil Markesinis

§§ 275(1) (pre-2001 version) and 269 BGB Even in mail-order sales the seller does not undertake to deliver the goods to the buyer. In a sale by description the seller’s obligation under §243 (2) BGB is limited to handing the goods over to the carrier. If the goods are lost in transit, the seller has no further duty to perform; §275(1) BGB ( pre-2001 version).

On 6 June 2001 the claimant sent the defendant, who ran a mail-order business dealing in electronic goods, ordering a Panasonic camcorder costing DM 1,999. On 28 June 2001 the defendant handed such an item, properly addressed, to a delivery service for delivery to the claimant. The claimant denies having ever received the camera…and now seeks judgment ordering the defendant to deliver, and transfer title to, a camcorder of the specified type. …

3. The court below was right to hold that even if the camcorder was inexplicably lost during the carriage and the claimant never received it, the defendant is not bound under §433(1) BGB to supply another camera like the one ordered.

a) Whether under §447(1) BGB, a provision specific to contracts of sale and delivery, the risk passed to the claimant is not really the question, since under the general provision of §275 BGB, as it then was, the defendant’s duty to deliver was discharged once the goods were handed to the delivery services and lost: the debtor is discharged from his obligation to perform when performance is rendered impossible by a subsequent event for which he is not responsible, as is the case here. There has been no suggestion that the defendant was in any way at fault in his choice of the carrier. The order for the camera certainly gave rise to a sale by description (§279 BGB, as it was) but even so the defendant was discharged, since by selecting a specific camera and handing it over to the delivery service the defendant’s obligation was crystallised in the actual camera handed over (§243(2) BGB), and by handing the camera over to the carrier the defendant did all that he was bound to do under that provision. This is also the effect of §447(1) BGB, the place of performance of the requisite acts being the defendant’s place of business (§269(1) and (3) BGB).

b) In case of doubt the place where the seller is bound to deliver and transfer title to the thing sold is the seller’s residence or place of business (§433 (1)(1) as it was), at any rate where no other place of performance is specified by the parties or inferable from the circumstances, such as the nature of the obligation (§269(1) BGB). … The mere fact that in the mail-order business it is typically for the seller to procure the despatch of the goods, whether at his own or the buyer’s expense, does not mean that the address to which the thing is despatched is also the place of performance of the seller’s duty to deliver (arguendo from §269(1) BGB): the presumption of §269(1) BGB is not displaced. …

d) The same conclusion follows from §447 BGB, which provides that once the seller has, at the buyer’s request, despatched the goods to a place other than the place of performance, the risk of accidental loss of or damage to the goods falls on the buyer. In such a case the risk of having to pay falls on the buyer as soon as the seller hands the thing over to the carrier (but note the new provision regarding consumer sales in §474(2) BGB). The rule of §447(1) BGB does not modify the place of performance as laid down by §269 BGB. ….