Definition and Nature of the Consignment for Inspection
Die Consignment for Inspection is a legal term from German civil law describing a special form of goods delivery within the framework of a purchase agreement. It enables the recipient to initially examine and inspect the delivered goods before committing to the purchase. Thus, the consignment for inspection regulates the modalities and legal consequences of delivering goods under the aspect of non-binding evaluation by the potential buyer.
Legal Basis of the Consignment for Inspection
Statutory Regulations
The consignment for inspection is regulated in German law, particularly by the provisions of §§ 454 to 456 of the German Civil Code (BGB). It describes what is called a sale on approval or sale for inspection, in which the buyer is granted the right to examine the purchased item within a specific time frame and to decide, only afterwards, bindingly for or against the purchase.
Sale on Approval (§ 454 BGB)
According to § 454 section 1 BGB, in a sale on approval, the contract is concluded under the suspensive condition that the buyer approvesthe goods, that is, agrees to them. Approval can be given expressly or also by conclusive conduct, for example by using the goods.
Declaration of Acceptance and Duties of Return
If the buyer does not approve the goods, he is obliged to return them within the agreed period. The return must comply with the regulations governing withdrawal rights and restitution (§§ 346 ff. BGB). Until approval, the recipient is liable for the goods received in accordance with the duty of care of a custodian in accordance with § 604 section 1 BGB.
Legal Consequences Upon Acceptance or Rejection
- Acceptance: If the goods are approved, the purchase contract becomes binding and concluded.
- Rejection: In the event of express rejection or failure to approve in time, the recipient is obliged to return the goods. If this does not happen, the seller may, under certain circumstances, be entitled to claim damages.
Distinctions from Similar Types of Contracts
Difference from a Sale by Dispatch
In a sale by dispatch (§ 447 BGB), unlike a consignment for inspection, a binding purchase contract is concluded, in which the goods are shipped from the seller’s location and are deemed delivered upon transfer to the carrier.
Difference from Sale by Sample
The sale by sample (§ 454 section 2 BGB) differs from a consignment for inspection in that a small quantity is delivered to test the characteristics for a possible subsequent purchase of larger quantities. This constitutes a regular purchase contract for the sample quantity.
Difference from Unsolicited Sending of Goods
In the case of unsolicited delivery of goods (§ 241a BGB), the recipient has no obligations at all. The consignment for inspection, however, assumes the explicit intention of both parties.
Rights and Obligations of the Contracting Parties
Obligations of the Sender (Seller)
- Obligation to properly send the goods for inspection according to the agreed conditions.
- Ensuring the period to inspect the goods.
- Assumption of the risk of return shipping, if agreed or based on standard commercial practice.
Obligations of the Recipient (Potential Buyer)
- Careful and proper handling of the consignment for inspection during the inspection period.
- Timely decision on acceptance or rejection of the goods and, if applicable, return within the agreed period.
- Repayment of incurred costs, if individually agreed or required by legal provisions (for example, return shipping costs in case of rejection).
Risks and Liability in the Context of the Consignment for Inspection
Risk Allocation
The allocation of risk in consignments for inspection is determined by the statutory regulations of the BGB. Until acceptance or express approval, the recipient is only liable for intent and gross negligence. If the goods are destroyed or deteriorate during the inspection period without fault of the recipient, the seller remains the owner and bearer of risk.
Ownership Status
Ownership of the goods remains with the seller until acceptance. Only with approval by the recipient does ownership transfer to him (§ 929 BGB, transfer of possession by agreement and delivery).
Significance of the Consignment for Inspection in Commerce
The consignment for inspection is particularly relevant in trade with works of art, textiles, musical instruments, technical equipment, or jewelry. It facilitates purchase decisions and reduces risk for the buyer by allowing a non-binding evaluation under real usage conditions.
International Law and Consignment for Inspection
In international trade, the consignment for inspection is not uniformly regulated, yet analogous provisions similar to German law often apply. Foreign legal systems and the UN Convention on Contracts for the International Sale of Goods (CISG) recognize comparable instruments, though their exact terms may differ significantly.
Closing Remarks
The consignment for inspection is a specifically regulated legal relationship in German contract law, characterized by clear distinction from similar contract types and a balanced allocation of rights and obligations between seller and recipient. Its legal framework provides both contracting parties with legal certainty and makes a significant contribution to promoting commerce, especially with high-value and consultation-intensive goods.
Frequently Asked Questions
Who bears the risk for accidental deterioration or loss of the goods during the consignment for inspection?
Legally, the risk of accidental loss or deterioration of the goods remains with the sender of the consignment for inspection until a valid transfer of ownership has occurred by acceptance of the goods. According to § 446 BGB (transfer of risk and charges in sales by dispatch), the risk stays with the sender until an express or implied declaration of acceptance. Should the goods be lost due to chance or force majeure, the recipient is not obligated to purchase or pay compensation. Deviating regulations can, however, be contractually agreed upon—it is common, for example, that the recipient is responsible for the care of the goods from receipt and acceptance, akin to a careful tester (similar to a custodian). Only after the recipient has declared the purchase or fails to return the goods in time (which counts as acceptance), does the risk transfer to him.
What are the recipient’s obligations regarding the handling of the goods in a consignment for inspection?
Legally, the recipient is obliged to handle the delivered goods with care and to use them solely for the agreed purpose—the inspection and evaluation. If there is no explicit contractual agreement, the regulations governing gratuitous deposit (§§ 688 ff. BGB) provide orientation. Accordingly, the recipient is liable for any negligent damage that goes beyond proper contractual use (such as normal trying-on). Most contracts expressly prohibit passing on or transferring the goods to third parties. There is a particular obligation to refrain from doing so, especially in the case of valuable or sensitive goods.
Within what period must the recipient decide on acceptance or rejection of the goods?
The period for deciding on acceptance or rejection is either contractually agreed or results from the purpose and nature of the consignment for inspection. No specific legal period is prescribed; however, the recipient must decide without undue delay (“unverzüglich” as per § 121 BGB analogously) once he has sufficiently examined the goods. If an agreed period elapses or the recipient gives neither an acceptance nor a rejection, this may be deemed acceptance for the purposes of the purchase contract. Senders usually indicate the deadline for return, after which the purchase is automatically considered concluded.
Who bears the cost of return shipping in the event of rejection of the consignment for inspection?
The obligation to bear return shipping costs depends on the individual case. In the absence of an explicit contractual provision, the sender regularly bears the shipping risk and the costs of return, as long as this is within the scope of inspection or testing purposes. In B2C relationships (consumers), statutory provisions frequently require free returns (§ 357 section 6 BGB, based on the right of withdrawal), unless agreed otherwise in advance. In business transactions (B2B), it is permissible to transfer costs to the recipient—but this should be clearly and transparently regulated in the contract or general terms and conditions. Reimbursement only applies if provided for by contract, law, or industry-standard practice.
Can the sender of a consignment for inspection demand withdrawal and return of the goods at any time?
The sender may withdraw the offer at any time as long as the recipient has not given acceptance. Legally, a consignment for inspection is an offer to conclude a purchase contract under the suspensive condition of acceptance by the recipient. If the offer is withdrawn, the recipient must return the goods (§§ 812 ff. BGB—claim for restitution). For special reasons (e.g., risk to the goods, payment default by the recipient), an immediate withdrawal may be justified. However, if the consignment for inspection has been established as a fixed purchase with right of return, withdrawal is not readily possible; here, the special interests of the recipient in possessing the goods apply.
What happens if the recipient does not return the goods in time or damages them?
If the goods are not returned within the agreed or a legally appropriate time, this may legally be considered acceptance of the purchase offer. A purchase contract is then concluded, with all resulting obligations, such as payment of the purchase price. In the event of damage, the recipient is liable according to the general principles of German tort and contract law (§§ 823 ff., 280 ff. BGB) for culpable breaches of the duty of care. In cases of slight negligence during ordinary use (e.g., trying on), liability for damages usually does not arise, but if the use exceeds the normal scope, the recipient can be fully liable.
How does ownership transfer occur in a consignment for inspection from a legal perspective?
Ownership of the goods remains with the sender of the consignment for inspection until the recipient declares acceptance of the offer and fulfills all conditions (e.g., payment of the purchase price). Before that, the recipient is only the possessor, not the owner. Ownership retention is legally regulated by § 929 sentence 1 BGB and its applicability to conditions and time-limited cases (§ 158 section 1 BGB). Upon receipt of the declaration of acceptance—express or by conclusive conduct (e.g., not returning within the open period)—ownership automatically transfers to the recipient. Until then, the goods may not be disposed of (resold, pledged, given away).
