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Contractual situation

2017-11-08

Delivery without contract

In this area difficulty has been caused by high pressure salesmanship: What of the case where the vendor sends goods to customer unsolicited and indicates that unless the customer returns them he will expect him to pay for them? In the past this has been a source of irritation to many, and the German law was uncertain, especially if the vendor appropriated the goods. It is a matter which has now received legislative attention.
The German law provides that where goods are sent to a person unsolicited by him (and he having no reasonable cause to believe that they were sent with a view to his acquiring them for business purposes) they are to be considered to be an unconditional gift to him upon certain conditions. These conditions are that either
(a) during the period of six months from the day that they were received the sender did not take possession of them and the recipient did not unreasonably refuse to permit him to do so; or
(b) not less than 30 days before the end of the six month period the recipient gave notice to the sender and that within 30 days from the sending of this notice the sender did not take possession of the goods, nor the recipient unreasonably refuse to permit him to.

Acceptance
It is relevant to determine the exact moment at which acceptance is made. Usually the answer to this question will depend upon the facts of the case; but there are situations in which the German courts have been forced to lay down arbitrary rules. So in the case of contracts concluded by correspondence where the offeror designates no particular time or mode of acceptance, the rule is that acceptance is made when the letter of acceptance is posted; if therefore the offeror wishes to withdraw his offer he must do so before that time.
However, if it is stipulated that acceptance must be communicated in order to be effective mere posting will not be enough to conclude the contract. Moreover, apart from the special rules relating to postal contracts, a contract is concluded where and when acceptance is made, and modern means of communication, such as telephone or telefax, where offer and acceptance are practically instantaneous, have produced some striking results. Thus a London company offered, by telefax, to buy goods from a company in Hamburg and the offer was instantaneously accepted. It was held that the contract was concluded in London. By contrast, when buyers accepted an offer from Austrian sellers it was held that the contract was made in Vienna.
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