If a consignment of goods is lost in transit, many mail order companies ask themselves what the legal consequences are for them. A distinction must be made here between the contractual relationship between the retailer and the customer on the one hand and the contractual relationship between the retailer and the commissioned transport company on the other.
For B2B business: The buyer always bears the transport risk
If the buyer acts as an entrepreneur when purchasing the goods and the goods are to be sent by the seller to the agreed delivery address, the risk of accidental loss and accidental deterioration of the goods sold shall apply accordingly §§ 446, 447 I BGB to the customer as soon as the seller has delivered the item to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment.
Accordingly, in such cases, the buyer always bears the transport risk. If the goods are lost or damaged in transit, the seller is no longer responsible for this, since he has already fulfilled his contractual obligations when the goods were handed over to the transport service provider. Liability on the part of the seller would then only come into question if he had not packed the goods properly or had given an incorrect delivery address.
When buying consumer goods: the seller always bears the transport risk
In principle, it is the responsibility of the seller if the goods are lost or damaged in transit. This regulation serves to protect consumers and is due to the fact that the seller decides on the type and route of transport and selects the carrier. He can also take out transport insurance and calculate this in the purchase price, while the buyer has no influence on this. The transport risk is therefore only transferred to the buyer when he obtains possession of the purchased item. The seller, in turn, can turn to the transport service provider (carrier) in the event of loss.
Possible claims of the seller against the transport service provider
The seller’s claims against the transport service provider result primarily from the special provisions of §§ 407 ff. HGB on the freight contract. According to this, the carrier is obliged to the seller to deliver the goods within an agreed period or, if no agreement has been made, within the period that can reasonably be granted to a diligent carrier, taking into account the circumstances, cf. § 423 HGB.
The seller can consider the goods lost if they are not delivered within the delivery period or within a further period that corresponds to the delivery period, but at least twenty days, or thirty days in the case of cross-border transport, § 424 I HGB.
According to § 425 I HGB, the carrier is liable for damage caused by loss of or damage to the goods in the period from acceptance for transport to delivery or by exceeding the delivery period. If the behavior of the sender or the recipient or a particular defect in the goods contributed to the damage, the obligation to compensate and the extent of the compensation to be paid depend on the extent to which these circumstances contributed to the damage (§ 425 II HGB ).
However, the special liability exclusions or limitations of liability regulated in §§ 426 ff. HGB, to which the carrier can refer if necessary, must also be observed.
Carrier’s obligation to investigate
If the loss of an item becomes known, the carrier must immediately investigate. This includes, among other things, a documentation requirement and research among employees as to how the loss could have come about.
However, these investigations can take a certain amount of time, which is often not reasonable for the buyer, since he needs the item urgently or is counting on it arriving.
Consumer’s rights against the seller
If the seller does not deliver the goods to the buyer on time, the buyer can demand repayment of the purchase price already paid or refuse to pay it. It should be noted that the purchase price already paid is only to be reimbursed by the seller if the buyer has effectively withdrawn from the purchase contract after setting a deadline for delivery to no avail or if it is certain that delivery is impossible due to loss of the goods and the seller is therefore no longer entitled to his Delivery obligation is exempt.
The latter can usually only be determined after the investigation process has been completed. However, if the buyer has already effectively withdrawn from the purchase contract by then, the seller must refund the purchase price to the buyer and cannot wait until the investigation procedure has been completed.
Conclusion
If a consignment of goods is lost in transit in the case of a mail-order purchase, the legal consequences depend first of all on whether the buyer acted as a consumer or as an entrepreneur when the contract was concluded. If the buyer has acted as an entrepreneur, the seller is no longer liable for the loss of or damage to the goods once the goods have been handed over to the transport service provider. On the other hand, if the buyer acted as a consumer (consumer goods purchase), the seller is generally liable to the buyer for the loss of or damage to the goods even after the goods have been handed over to the transport service provider.
In this case, the seller can turn to the transport company to settle the damage. However, the special regulations of §§ 407 ff. HGB on the freight contract must be taken into account. After a deadline has not been set, the consumer can withdraw from the purchase contract and, if applicable, demand a refund of the purchase price already paid. The seller, for his part, is no longer obliged to supply the consumer with an item other than that which has already been sent.
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