Table of Contents
Requirements for default of acceptance
If the buyer does not accept the ordered and properly delivered goods (at the right time and at the right place), he is in default of acceptance (§ 293 BGB). Since the buyer, from a legal point of view, is the creditor for the delivery of the goods, one also speaks of "creditor default".
The supplier's liability is reduced as a result of the default in acceptance; he is only liable for intent and gross negligence.
Rights of the supplier in the event of default in acceptance
If the supplier is a merchant, he can deposit the goods in a public warehouse or in some other secure manner at the buyer's expense and risk (Section 373 (1) HGB) and either sue the buyer for acceptance of the goods and reimbursement of the costs incurred, or instead make the so-called self-help sale of the lawsuit.
A non-merchant could have the goods publicly auctioned at the place of performance in accordance with Section 383 BGB and deposit the proceeds. If adequate auction proceeds are not to be expected at the place of performance, the goods are to be auctioned at another suitable location.
As a rule, a businessman will not complain because he can get his money faster and more safely through self-help sales.
In this case, the supplier must inform the buyer that the goods have been deposited and threaten him that they will be sold after a certain period of time.
Lässt der Käufer die Frist verstreichen, ohne die Waren nachträglich anzunehmen, so kommt es zum Verkauf der eingelagerten Waren durch öffentliche Versteigerung (Gerichtsvollzieher). Waren mit einem Börsenoder Marktpreis können auch durch einen zu solchen Verkäufen öffentlich ermächtigten Trade broker „aus freier Hand“ verkauft werden.
The supplier must inform the buyer of the place and time of the auction in good time. Buyers and suppliers can bid on it.
The supplier must immediately notify the buyer of the result of the auction. The self-help sale takes place for the account of the buyer. He must therefore bear the costs incurred (auction fee), in addition to reimbursing LPdem for the shortfall in proceeds in the event of a sale below the agreed price.
Perishable goods can be sold without prior warning. The buyer must be notified of the sale immediately.