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The Scenario I bought a notebook online from a private person. As he lives to far away, we agreed on he sending it via DHL. I paid the money, he took the packet to the mail office, but the packet got lost on the way. DHL started a search, but on my request refused to inform me about the state, with the reasoning that I shall ask the sender, as he holds the contract with DHL.

The Problem The sender is not responding to my email, texting, or phone calls. How can I get my money back? Is he required to give me back my money, since I did not receive the notebook? Or shall I blame DHL?

Both me and the seller live in Germany, so answers regarding German law would be appreciated very much :)

Details about the transaction:

I did pay by bank transfer/SEPA, the sender is an individual, he gave me a copy of his ID card, we made no special agreements on refunds or whatsoever

  • Did the sender send you any prove or scan that s/he actually sent the parcel? – mykey Aug 13 '15 at 20:02
  • @mykey Yes I've got a tracking number – Cornyfisch Aug 13 '15 at 20:54
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According to BGB §447, by default the purchaser is liable if a purchased good is damaged/lost in transit:

§ 447 Gefahrübergang beim Versendungskauf

(1) Versendet der Verkäufer auf Verlangen des Käufers die verkaufte Sache nach einem anderen Ort als dem Erfüllungsort, so geht die Gefahr auf den Käufer über, sobald der Verkäufer die Sache dem Spediteur, dem Frachtführer oder der sonst zur Ausführung der Versendung bestimmten Person oder Anstalt ausgeliefert hat.

"Erfüllungsort" is a synonym for "Leistungsort", and according to BGB §269:

§ 269 Leistungsort

(1) Ist ein Ort für die Leistung weder bestimmt noch aus den Umständen, insbesondere aus der Natur des Schuldverhältnisses, zu entnehmen, so hat die Leistung an dem Ort zu erfolgen, an welchem der Schuldner zur Zeit der Entstehung des Schuldverhältnisses seinen Wohnsitz hatte.

So, if I am reading the BGB correctly, then it's you, the purchaser, who bears the risk of the goods getting lost during transport.

The seller probably has the obligation of helping you to make a claim against DHL. But the loss of the package is between you and DHL, I'm afraid.


Notes:

  • This only applies to purchase from a private individual. If you, as a consumer, purchase from a business ("Verbrauchsgüterkauf"), the business bears the risk of shipping (BGB §474).
  • There is an article on eBay's help pages which also explains this: eBay: Versandrisiko für Käufer und Verkäufer
  • All this probably only applies if both seller and purchaser live in Germany. For international deals, the rules are (even) more complicated...
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Not specific to Germany but see here regarding privity of contract.

Is there a recourse against UPS for not delivering packages on time?

Generally speaking, unless Germany has different laws or different default contractual arrangements, DHL owes you nothing. Your agreement is with the owner who is the person that owes you either your goods or your payment.

Unless you took ownership before the DHL picked it up. In the US we call this FOB in which case the buyer is responsible for damage or loss during transport but I highly doubt that is your arrangement.

  • So what further actions would you recommend? Should I sue the sender then for not giving me my money back? – Cornyfisch Aug 13 '15 at 21:50
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    Call DHL, acting like you're the sender! Suggesting action starts to sound a lot like legal advice which we tend to stay away from. There are some stack members from Germany, perhaps they can offer suggestions. You've left out quite a bit of information such as a) how did you pay, b) is the seller a company or an individual, c) how was the transaction organized/facilitated, d) was there an explicit agreement about shipping and/or refunds, e) where is the seller located, possibly more that I can't think of right now. – jqning Aug 13 '15 at 21:50
  • updated my question – Cornyfisch Aug 13 '15 at 23:23
  • Is he in Germany? Perhaps he's on one of those long European summer holidays that we hear about? – jqning Aug 14 '15 at 0:18
  • Yes he lives in Germany. I've got his last mail on june, 14th, nobody has that much holiday without a wifi connection ;) So he should have gotten my mails – Cornyfisch Aug 14 '15 at 6:56

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