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Case:
BGH NJW 1958, 418
VIII. Civil Senate
Date:
10 January 1958
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs Irene Snook
Copyright:
Professor B.S. Markesinis

Reasons

The claim for delivery of substitute goods based on para. 480 I BGB is the original claim for performance of the contract for sale (Larenz 'Lehrb. des SchuldR', Vol. II, 37 III p.55 and further references). However, according to para. 480 I 2, this claim is also subject to the short period of prescription as set out in para. 477 BGB, since para. 480 I 2 declares the provisions of paras 465 and 477 respectively applicable in such cases. But under para. 477 only the claim for cancellation itself and not also claims resulting from such cancellation (para. 465 BGB) is subject to the short period of prescription. It must therefore be concluded from a corresponding application of the provisions of para. 477 in conjunction with para. 465 BGB that the short period of prescription in respect of the cancellation applies only as long as the seller has not yet agreed to it (the same result in :

Düringer-Hachenburg, HGB V, 3. ed., Einl. zum 3. Buch des HGB, p. 209, n. 237 b). In fact, the RG has based several of its decisions on whether or not the agreement on the substitute delivery had to be interpreted as meaning that this claim was now no longer directly based on para. 480 I BGB but rather, because of the agreement on the partial or total rescission of the contract for performance, on the restored original claim for delivery and then held that for such cases the plea of prescription could not be brought against the original, now restored, claim for performance (RGZ 93, 98, 100; 96, 169; 69, 385, 386; WarnRspr. 1929 Nr.97 = HRR 1929, 1724). But this distinction between the claim for delivery of substitute goods and the original claim for delivery fails to consider that the claim for delivery of substitute goods itself is nothing else than the original claim for delivery under the contract for sale since, in cases of delivery of defective goods, the buyer of generic goods can maintain that his claim for performance has not yet been satisfied by the delivery and that he is thus entitled to demand delivery of goods free from defects. The claim for substitute delivery is thus no longer subject to the short period of prescription once complete agreement has been reached in respect of it (para. 465 BGB in conjunction with para. 477), so that this agreement has provided a secure basis for the claim for delivery of substitute goods itself and for the scope of such claim.