The type and scope of an incoming goods inspection must not involve requirements that are too high and too general.
Many sellers are concerned to give the buyer of their goods concrete guidelines on how and to what extent the buyer must check the goods for defects. The reason for this is that under § 377 German Commercial Code (HGB) a product is considered free of defects if the buyer has not inspected it immediately after delivery and has not reported any defects. In this case, the buyer loses the right to assert his warranty rights.
In their own general terms and conditions, sellers tend to set quite high or general requirements for the type of inspection of incoming goods at the customer's premises as well as the scope of inspection. Frequently, the customer does not comply with these requirements and the seller can rely on absence of testing if defects occur later and thus avoid liability.
Once again, the German High Court (BGH) has set limits and clarified that the requirements for incoming goods inspection must bear a reasonable relationship to the circumstances of the individual case. Very high and general requirements can therefore place the buyer at an unreasonable disadvantage and may therefore be invalid overall.
Indications of appropriateness include, for example, the costs and time required for an inspection, technical inspection options, the purchaser's own technical knowledge or the need to have the inspection carried out by third parties.
In the specific case before the Court, a clause which always required complete examination of the goods for all defects – also for those not immediately detectable ‒ and left no room for deviations was invalid.
Sellers must therefore take care to provide concrete guidelines regarding the properties to be investigated and the methods to be applied. On the other hand, deviations must also be permitted insofar as these are caused by the circumstances of the individual case. A requirement to always call in an external expert for testing will generally be invalid.
Source: BGH, decision of 06.12.2017, ref: VIII ZR 246/16