- BGH NJW 1963, 1823 II. Civil Senate
- 04 July 1963
- Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
- Translated by:
- Mrs Irene Snook
- Professor B.S. Markesinis
According to the contract it was vitally important that the work undertaken by the defendant be completed as fast as possible, since while the ship was under repair it was earning no income for the plaintiff and was costing him the usual outgoings
Instead of completing the work on 29 March, as promised, the defendant did not have the work completed until 8 April. The loss which this late completion caused to the plaintiff is damage due to delay, and the plaintiff may sue for it under para. 636 para. 1 sent. 2 BGB if its legal preconditions are satisfied. They are so satisfied in this case. Since the defendant had bound itself to do the work with maximum speed, that is, according to the findings of the judgment under appeal, by 29 March, that was the date when the defendant's performance fell due, as the Court of Appeal was right to observe. The reason why the defendant was unable to perform on time was that time had been lost by unprofessional work before then. The delay in redelivering the repaired ship due to such unprofessional work constitutes a breach of contract for which the defendant is responsible under para. 285 BGB and which directly triggers the sanctions specified in para. 286 BGB. In this case there was no need for any notice of default (Mahnung: para. 284 BGB). The purpose of notice of default is to induce the debtor to perform forthwith by making it clear to him that unless he does so, sanctions will ensue. A special notice of default is therefore never necessary if the function of such a notice has already been performed by the very formation of the contract. That is the case when, as here, the debtor knows perfectly well that he must answer for the consequences if he does not perform by the time by which he has promised to perform, and when this promise has become an essential component of the contract (see BGH NJW 1959, 933). As the Court of Appeal correctly noted, it makes no difference whether the defendant's conduct before the due date was characterised by total inertia, dilatoriness or incompetence.
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