Liability for accidental loss of or damage to goods in e-commerce

Many delivery services now allow customers to specify a safe place where the carrier can leave ordered goods, meaning they no longer have to accept them in person. When everything works smoothly, this is a convenient solution for both the delivery service and the customer. It becomes difficult, however, when the carrier states that the parcel was left at the safe place but the customer cannot find it there. In such cases, customers generally contact the seller whose goods have supposedly failed to arrive. What happens then? Is the seller responsible for ensuring that the goods reach the customer’s hands? Does responsibility pass when the parcel is handed over to the delivery service, or is the customer personally responsible if they have given the delivery service a safe-place authorisation?

As is so often the case, there is no single answer for every situation. In principle, the transfer of risk in a sale involving carriage is governed first of all by section 447 of the German Civil Code (BGB). Subsection 1 states: “If the seller, at the buyer’s request, ships the sold item to a place other than the place of performance, the risk passes to the buyer as soon as the seller has delivered the item to the forwarding agent, carrier or other person or institution designated to carry out the shipment.” A safe-place authorisation therefore initially makes no difference in this case. As a rule, the risk passes to the buyer as soon as the item is handed over to the delivery service.

The position is different, however, if the buyer — as is relatively common in e-commerce — is a consumer within the meaning of section 13 BGB. If a consumer is involved, section 474 BGB applies to the sale of consumer goods, as does section 475(2) BGB: “Section 447(1) applies subject to the proviso that the risk of accidental loss and accidental deterioration passes to the buyer only if the buyer has commissioned the forwarding agent, carrier or other person or institution designated to carry out the shipment and the trader has not previously named that person or institution to the buyer.” — The situation described here is unlikely to arise in most online purchases: it is the seller, not the buyer, who commissions the delivery service. In a sale of consumer goods, the seller therefore initially bears the risk of accidental loss or deterioration until the buyer actually takes possession of the goods.

This still leaves the question of how a safe-place authorisation given by the buyer to the delivery service affects the transfer of risk and, potentially, the purchase contract. It should be noted that the seller will generally neither have any influence over such authorisations nor even become aware of them — at least until a delivery problem occurs. Against the background of the principle that contractual obligations bind only the parties, such a safe-place authorisation has no effect on the purchase contract itself, which is why the seller is affected by the resulting problems. Where a safe-place authorisation has been given, the seller can refuse further liability only if it can demonstrate and prove that it handed the goods to the delivery service, that the customer gave the delivery service a safe-place authorisation and that the goods were left at the safe place without external damage. This often involves considerable effort. Although the statutory rules may result in the risk of loss passing to the buyer when the goods are left at the requested location, if the buyer claims that no delivery was made there, the seller must prove otherwise and remains liable under the purchase contract — either to deliver again or refund the purchase price. In providing this evidence, the seller depends on the delivery service’s cooperation. Only the delivery service can provide information about the safe-place authorisation and prove that delivery was made to the requested location. If it was not, the seller could merely bring a recourse claim against the delivery service within their internal relationship. But here too, the seller would have to demonstrate and prove that the delivery service was responsible for the loss. The evidential position is therefore extremely unfavourable for the seller and, in the worst case, leads to disputes with both the buyer and the delivery service. E-commerce companies should always be aware of this, and appropriate claims management is indispensable.