Requirements for requests for supplementary performance

The Buyer's right to withdraw from the contract pursuant to § 437 No. 2 BGB in accordance with the provisions of §§ 440, 323 BGB shall, pursuant to § 323 (1) BGB, generally require that the Buyer has previously unsuccessfully set the Seller a reasonable deadline for subsequent performance (§ 439 BGB).

According to the established case law of the Federal Court of Justice (BGH), a valid request for subsequent performance by the purchaser must - in addition to setting a deadline - also include the purchaser's willingness to make the purchased item available to the seller at the right place, i.e. the place of performance of the subsequent performance, for an appropriate inspection in order to check the complaints raised (cf. also Section 439 (5) of the German Civil Code (BGB) in the version applicable from 01.01.2022; on this subject, BT-Drs. 19/27424, 26 f.). This is intended to enable the seller to check the sold item as to whether the alleged defect exists, whether it was already present at the time of the transfer of risk, the cause of the defect and whether and how it can be remedied. Accordingly, the seller is in principle not obliged to accept a request for subsequent performance by the buyer before the latter has given him the opportunity for such an examination of the purchased item, cf. BGH, Urt. v. 30.03.2022 - VIII ZR 109/20.

The general provision of Section 269 (1), (2) of the German Civil Code (BGB ) is decisive for determining the place of subsequent performance under the law of sales, cf . fundamentally BGH, judgment of. 13.04.2011 - VIII ZR 220/10. This has the consequence that in the absence of contractual agreements on the place of performance, the respective circumstances, in particular the nature of the obligation, must be taken into account. If no conclusive findings can be obtained from this, the place of performance is ultimately to be located at the place where the seller had his place of business at the time the contract was concluded, cf. BGH, Urt. v. 19.07.2017 - VIII ZR 278/16.

Practice Notes

  1. In purchase contracts and contracts for work and materials, regulate not only the place of performance but also the place of subsequent performance. A schematic representation (e.g. always at the seller's place of business) does not make sense; instead, this should be regulated individually depending on the individual case. This will help you avoid unnecessary discussions, costs and risks in warranty cases.
  2. From the buyer's point of view, also make sure to make the item available to the seller for the purpose of subsequent performance, cf. section 439 (5) of the German Civil Code (BGB).
  3. Finally, the request to remedy the defect must be carefully formulated, otherwise there will be no effective deadline for subsequent performance.