How to Legally Withdraw from a Purchase Agreement

Initial Situation

The buyer's right to withdraw from the contract according to § 437 No. 2 BGB under the provisions of §§ 440, 323 BGB generally requires, according to § 323 Para. 1 BGB, that the buyer has previously, unsuccessfully set a reasonable period for supplementary performance (§ 439 BGB) to the seller.

A suitable request for supplementary performance by the buyer must, according to the consistent case law of the BGH – in addition to setting a deadline – also include the buyer's willingness to provide the seller with the sales item for the examination of the raised defect claims at the correct location, namely the place of fulfillment for supplementary performance, for a corresponding investigation (see also § 439 Para. 5 BGB in the version valid from January 1, 2022; regarding this BT-Drs. 19/27424, 26 f.). This is intended to enable the seller to verify the sold item to determine whether the alleged defect exists, whether it was present at the time of the risk transfer, what cause it is based on, and whether and how it can be remedied. Consequently, the seller is generally not obliged to engage with a request for supplementary performance from the buyer before the latter has given him the opportunity for such an examination of the sales item, see BGH, decision of 30 March 2022 – VIII ZR 109/20.

For determining the place of supplementary performance, the general provision of § 269 Para. 1, 2 BGB is decisive in purchase law, see fundamentally BGH, decision of 13 April 2011 − VIII ZR 220/10. This results in the consequence that in the absence of contractual agreements about the place of fulfillment, the respective circumstances, particularly the nature of the obligation relationship, must be referred to. If no final findings can be obtained from this, the place of fulfillment is ultimately to be located at the place where the seller had his business location at the time of the conclusion of the contract, see BGH, decision of 19 July 2017 – VIII ZR 278/16.

Practical Recommendations

1. In purchase and work supply contracts, regulate not only the place of fulfillment but also the place of supplementary performance. A schematic representation (e.g., always at the seller's location) is not advisable, rather this should be regulated individually depending on the case. This way, you avoid 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 Para. 5 BGB.

3. Finally, the defect rectification request must be carefully formulated, otherwise no effective deadline for supplementary performance is set.