If the debtor declares before the due date that he will not be able to pay in time, the occurrence of default does not require a reminder. According to the Federal Court of Justice, this would mean pure formality, since the debtor cannot follow the reminder anyway. If an intervention by the creditor reduces a higher damage caused by the delay, the latter can demand reimbursement of the costs of the measure.
Cockpit module manufacturer has urgent parts shipped by air
A shipping insurer sued a logistics company for subrogated damages for $12,600 in delay damage. Its policyholder equipped vehicles produced by an automobile manufacturer in Mexico with cockpit modules. The insured had concluded a framework agreement with the logistician. From April 1st, 2016, she was supposed to transport production parts from other European countries overland to Bremen, pack them in containers and ship them to Mexico. However, due to machine damage on a container ship, the goods could not be loaded in June 2017. In an email dated June 30, 2017, the logistics company offered another ship, which was scheduled to start a week later. On July 6th, 2017, the news came that another ship – again with a week’s delay – was to depart. On the same day, the client asked the defendant twice in vain by e-mail to examine earlier options in order to prevent a production standstill. On 07/10/2017 they refused to send the most urgently needed parts by air freight. The manufacturer then commissioned a freight forwarder, which carried out air transport from July 20, 2017 for USD 12,876.03. The plaintiff paid her this amount less the saved sea transportation costs of approximately USD 276.03 and a deductible of USD 5,000.
Higher Regional Court affirmed the claim for damages – but not because of delay
Both the Hamburg Regional Court (mostly) and the local Higher Regional Court affirmed the claim for damages asserted because of the expenses of their insured persons for air transport. However, this does not result from reasons of default. The two e-mails from July 6th, 2017 are reminders because the insured person made it clear that she expects a fulfilment. Before the due date, however, these did not trigger a default. A reminder after the due date was also not superfluous. There is no serious and final refusal to perform according to § 286 Abs. 2 No. 3 BGB, because the defendant had answered negatively before the due date. However, the claim for damages follows from § 280 Abs. 1 Civil Code. On the other hand, the defendant defended itself with the revision – without success.
Warning here “pure formality”
The first civil senate finally agreed with the OLG. It is true that the defendant was in default with its performance. However, there was no need for a reminder to be sent to the insured after the due date, since according to § 286 Abs. 2 No. 4 BGB, the immediate occurrence of the delay was justified for special reasons after weighing the interests of both parties. If the debtor declares, as here, before the due date that he cannot pay on time, it is pure formality to make the occurrence of default dependent on a reminder from the creditor after the due date, which the debtor, according to his declarations, cannot follow anyway. In addition, the transport costs incurred by the insured represented delay damage to be reimbursed by the defendant.
on BGH, judgment of April 20, 2023 – I ZR 140/22
Editorial office beck-aktuell, June 29, 2023.
Related Links
From the beck-online database
OLG Hamburg, liability of the carrier from § 280 Abs. 1 BGB in the event of impending late delivery, RdTW 2022, 397 (lower court)
LG Hamburg, threatened late delivery of the goods and substitute transport, BeckRS 2021, 56346 (input instance)
Bahnsen, Liability for delays in sea freight law – Discussion on LG Hamburg, 6 U 123/19 – Cartagena Express, RdTW 2021, 219