Seller’s liability for late delivery of goods
Sellers of professional or private goods, whether they sell to consumers or businesses in Switzerland, are affected by the rules on delivery and liability.
Here are the main points to be aware of under Swiss law:
- If you are late, you risk not only a cancellation of the sale, but also an action for additional damages.
- Proof of delivery is the seller’s responsibility, and it is up to the seller to decide how to provide it properly.
- Interpreting the appropriate period, the absolute period or the indicative period can be difficult, and doubt favours the buyer rather than the seller, even more so if the buyer is a consumer.
- Although the seller must fulfil its obligations within a certain period, it is not always the seller who causes the delay. This may be due to the fault of a third party or of the buyer himself, or even force majeure, and all such cases must be clearly demarcated between the parties.
Any private individual who sells goods privately is also affected, since the seller’s liability is not reduced if you are not a professional.
Main legal rules
Now that we have an overview of the context, let’s look at the main legal rules governing delivery times. Here are a few key points to bear in mind:
- Firstly, it is appropriate to distinguish according to the type of time period agreed, or whether it was agreed at all, according to the following rules:
- An agreed deadline is generally understood as an indicative deadline, allowing for a slight delay.
- It must be clearly stated in the contract that a delivery must absolutely be made by a certain date or even time, on pain of cancellation. This could be the case for the delivery of a wedding cake, where a delay of one day cannot be tolerated.
- If no time limit has been agreed, performance is in principle due immediately.
- Secondly, any delay is not necessarily the seller’s responsibility. In fact, if you have agreed that a delivery will be made by the third-party carrier, and the seller’s obligations are fully performed when the goods are handed over to this carrier, the seller is no longer liable for any delay once the goods have been handed over within the agreed time.
The deadline therefore relates to the handover of the goods to the carrier and not to the buyer.
- If the buyer notices a delay in delivery, he must give the seller formal notice and set a suitable final deadline, failing which the contract will be terminated and any sums paid refunded.
- The fact that the goods have been delivered or dispatched must be proved by the seller, where applicable. There is no legal list of accepted means of proof, and each situation is assessed on a case-by-case basis, taking into account the circumstances and general practices in this area.
- In the event of delay, the seller is not only exposed to the risk of cancellation of the sale, but also to any claim for damages. This may be the case if the buyer has to buy a product of the same type, but at a higher price, or if he has to hire a car urgently before a car ordered is delivered.
- Unless otherwise stated in the contract, the price is due only when the sale is performed. The seller cannot pursue payment of the price if it has not itself performed its obligations. However, providing for a specific date for payment instead of a period after delivery, or providing for a deposit, enables the price to be demanded despite the delay.
- The seller’s liability is not automatically waived if the delay is attributable to its staff, subcontractors or third-party carriers. These questions should be addressed in the description of the transfer of risks, the seller’s main obligations and the deadlines.
- There is no automatic right for the buyer to claim price reduction for delay. Moreover, damages because of delay are quite difficult to quantify and prove. So a flat-rate penalty for each day or hour of delay may be worth considering.
Recommendations
To avoid disputes linked to late delivery, here are our recommendations:
- Remember to clearly indicate the sales deadlines laid down, either in the individual sales contract or in the general terms and conditions of sale, and to clearly specify or exclude the period of delay to be tolerated, depending on your needs.
- For regular sales from stock, including online sales, remember to include in your general terms and conditions a deadline for confirming the availability of an item, so that you are not committed until confirmation is given. This will at least avoid you having to pay damages for delays in relation to the general deadlines, as you are not yet bound by a sales contract before this confirmation is given.
- Clearly define whether your obligations are to hand over the goods to the carrier, to deliver without unloading or with unloading, and who assumes the reciprocal responsibilities.
- Given that your most important means of pressure is to control the price paid, consider demanding a deposit as a guarantee. Procedurally, this reassures you that the buyer can only claim his rights in court, without simply refusing to pay the price when the delay is not your contractual responsibility.
- Use our templates to clarify what happens when the delay in delivery is due to the buyer’s fault. He has no firm obligation to do so, but must attend the delivery as far as possible, or risk losing his rights. This is the case if the buyer has given a wrong address or does not show up at the agreed delivery time.
- Remember to settle the outcome of non-delivery, particularly if the buyer does not collect the goods. Can you leave it outside the door? Can you post back at the buyer’s expense?
- And don’t forget to work out how proof of delivery is to be provided to avoid any misunderstandings. Proof – this is the most important thing in any dispute.
- The above options can be used to protect you with our model sales contracts and general terms and conditions.
