Damages due to late delivery?
When is delivery by the seller considered to be delayed?
Generally speaking, “delayed” simply means “late.” In legal terms, this also means that the buyer has various rights against the seller. The seller is deemed to be in default once they have been warned by the buyer. A warning is not required if a specific day was agreed for delivery or if the seller has informed the buyer that they will not deliver.
What can a buyer do in the event of delayed delivery?
The buyer can set the seller a deadline for fulfillment. No deadline must be set if subsequent delivery would be useless for the buyer, the delivery was to take place at a specific time, or if from the behavior of the seller the buyer can conclude that they never intended to deliver. After the deadline has passed, you can either
- claim subsequent fulfillment and claim damages for the delayed delivery, or
- waive subsequent delivery and claim damages for non-performance.
How must a warning or set deadline be issued?
This can be done orally or in writing. However, for reasons of proof, it is recommended to send a letter by registered mail. The required performance as well as the set deadline must be indicated precisely. The deadline must be set so that subsequent delivery is feasible for the seller.
We have provided a sample reminder below.