Buyer’s claim for advance payment of transport costs – Federal Court of Justice clarifies rights and obligations regarding subsequent performance
The recent decision of the Federal Court of Justice (BGH, Judgment of March 20, 2024 – VIII ZR 109/20) provides an in-depth examination of the conditions under which a buyer, within the framework of warranty for defects, can claim an advance payment for transport costs from the seller. In particular, the focus is on the significance of the seller’s willingness to collect the defective item from the buyer by arranging and bearing the costs himself.
Background: Claims in the event of defects
Under German sales law, Section 439 (2) of the German Civil Code (BGB) obliges the seller to reimburse the buyer for necessary expenses incurred in the course of subsequent performance. In particular, these include transport, travel, labor, and material costs. In practice, however, it is often unclear whether the buyer may demand an advance payment for these expenses or must first pay upfront. This becomes especially relevant when the buyer lacks the financial resources to promptly ship bulky or high-value goods.
The key statement of the current BGH decision
The Federal Court of Justice clarifies that a buyer is generally entitled to claim an advance payment for transport costs if the seller fails to meet his obligation to bear the costs or does so too late, or if the buyer must not be burdened with these costs. However, this entitlement to an advance ceases if the seller offers and properly arranges for the free-of-charge collection of the defective item from the buyer in a timely manner.
Collection instead of advance payment – limitations and prerequisites
The BGH emphasizes that the aim of Section 439 (2) BGB is to provide effective protection for the buyer against financial burden due to subsequent performance. However, if the seller meets this protection interest by taking over the complete organization, including costs for returning the defective item, the buyer’s interest is likewise safeguarded. The entitlement to an advance is therefore subsidiary, i.e., secondary, when the seller takes direct action.
A relevant prerequisite is that the seller’s offer to collect takes due account of the buyer’s legitimate interests. Factors such as reasonable scheduling, advance notice of collection, and ensuring proper execution are key considerations. If this results in a disadvantage to the buyer—for example, regarding their time resources or economic risks—an advance payment claim may, in individual cases, still exist.
Practical implications for buyers and sellers
The decision by the BGH clarifies that sellers may take an active role in the warranty process and are not necessarily required to pay blanket advances to buyers. Buyers, in turn, should check to what extent a collection offer is reasonable and practical in their particular case. However, if such an offer conflicts with their legitimate interests or if key questions about the organization of the collection remain unresolved, further claims may exist.
Furthermore, this highest court case law makes it clear that both contracting parties must show mutual consideration and take into account the other’s legitimate interests in the context of subsequent performance. In particular, mutual communication is crucial—not least to avoid misunderstandings and costly legal disputes.
Outstanding issues and conflicting interests in practice
The practical handling, especially in defining reasonable and unreasonable collection terms, remains a significant area for judicial clarification. For example, the balancing of interests for particularly bulky or valuable items, or if collection is challenging due to access routes, will have to be decided on a case-by-case basis.
The decision of the BGH tends to strengthen the position of the seller, provided that he is willing and actively takes steps towards the free-of-charge collection of the defective item. At the same time, there will remain room for disputes in the future if, for instance, organizational or factual obstacles stand in the way of such a solution.
For companies, retailers, and buyer-side parties, a precise assessment of their rights and obligations in connection with subsequent performance and the handling of transport costs can be of considerable economic importance in individual cases. For further legal assessments regarding specific questions in this area, the lawyers at MTR Legal are available as contact persons.
