The right of the buyer to withdraw from the contract in accordance with § 437 No. 2 BGB in accordance with the provisions of §§ 440, 323 BGB presupposes, in accordance with § 323 Para. 1 BGB, that the buyer has previously set the seller a reasonable deadline for subsequent performance (§ 439 BGB) without success.

According to established BGH case law, a suitable request for subsequent performance by the buyer must - in addition to setting a deadline - also include the buyer's willingness to make the purchased item available to the seller for a corresponding inspection at the right place, namely the place of performance of the subsequent performance, in order to check the complaints made (see also Section 439 (5) BGB in the version valid from January 1, 2022; BT-Drs. 19/27424, 26 f.). This is intended to enable the seller to inspect the sold item to determine 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 generally not obliged to agree to a request for supplementary performance by the buyer before the buyer has given him the opportunity to inspect the purchased item, cf. 30.03.2022 - VIII ZR 109/20.

In sales law, the general provision of Section 269 (1), (2) BGB is decisive for determining the place of subsequent performance, see fundamentally BGH, judgment of 13.04.2011 - VIII ZR 220/10. This means 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 made from this, the place of performance must ultimately be the place where the seller had its registered office at the time the contract was concluded, see BGH, Urt. v. 19.07.2017 - VIII ZR 278/16.

Practical recommendations

  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, you must also ensure that you make the item available to the seller for the purpose of subsequent performance, cf. section 439 (5) BGB.
  3. Finally, the request to remedy the defect must be carefully formulated, otherwise there will be no effective deadline for subsequent performance.

Published on November 9, 2022 in German.