Withdrawal from the Purchase Agreement

Initial Situation

The buyer's right to withdraw from the contract pursuant to § 437 No. 2 BGB based on the provisions of §§ 440, 323 BGB generally requires, according to § 323 paragraph 1 BGB, that the buyer has previously set the seller an appropriate period for supplementary performance (§ 439 BGB) without success.

A valid request for supplementary performance by the buyer, according to consistent BGH case law, must - in addition to setting a deadline - also include the buyer's willingness to make the purchased item available to the seller for inspection of the alleged defects at the correct place, namely the fulfillment place of the supplementary performance, for a corresponding examination (see also § 439 paragraph 5 BGB in the version applicable from 01.01.2022; refer to BT-Drs. 19/27424, pp. 26 et seq.). This is intended to allow the seller to check whether the alleged defect exists, whether it was present at the time of risk transfer, what its cause is, and whether and how it can be remedied. Accordingly, the seller is generally not obliged to comply with a request for supplementary performance by the buyer before the buyer has given him the opportunity to carry out such an examination of the purchased item, see BGH, Judgment of 30.03.2022 – VIII ZR 109/20.

For determining the place of supplementary performance, the general provision of § 269 paragraphs 1, 2 BGB is decisive in sales law, see fundamental BGH, Judgment of 13.04.2011 – VIII ZR 220/10. This means that in the absence of contractual agreements regarding the place of fulfillment, one must refer to the respective circumstances, particularly the nature of the obligation. If no conclusive findings can be obtained from this, the place of fulfillment is ultimately to be located at the place where the seller had his business headquarters at the time of the conclusion of the contract, see BGH, Judgment of 19.07.2017 – VIII ZR 278/16.

Practical Recommendations

1. In purchase and work delivery agreements, regulate not only the place of fulfillment but also the place of supplementary performance. A schematic representation (e.g., always at the seller's headquarters) is not advisable; rather, this should be regulated individually according to the case. This avoids unnecessary discussions, costs, and risks in warranty cases.

2. From the buyer's perspective, also ensure to make the item available to the seller for the purpose of supplementary performance, see § 439 paragraph 5 BGB.

3. Finally, the request for defect rectification must be carefully formulated, as otherwise, no effective deadline setting for supplementary performance occurs.