The plaintiff was the insurer of company R, which had been commissioned to transport five safes to the warehouse of the consignee, company P.

R had used the defendant as a subcontractor for the transport to P's warehouse. The defendant's driver had put the five safes in front of P's warehouse, where at that time none of P's personnel were present. The goods were then stolen. The plaintiff alleged that the goods had not been delivered.

The plaintiff paid the claim under the insurance cover and asserted a claim for damages against the defendant under the transferred right to damages.

The Munich Regional Court I held that the plaintiff was entitled to the claim against the defendant because the latter was unable to prove the delivery of the goods to P.


The Munich Higher Regional Court upheld the decision of the Munich Regional Court I and confirmed that 'delivery' under Section 425(1) of the Commercial Code essentially means the procurement of direct possession.

While the physical seizure of transported goods by a consignee is unnecessary, the goods must be made available to the consignee in such a way that it can, without further obstacles, seize control of the goods.

The burden of proof that delivery has taken place usually lies with the carrier. However, in this case the defendant had been unable to prove the delivery of the goods. Leaving the goods in front of the unoccupied warehouse did not sufficiently provide the recipient with the ability to directly receive and take possession of the goods. If the consignee had provided instructions or if a prior agreement had been reached between the consignee and the carrier, then the outcome may have been different.

Moreover, the driver's storage of valuable goods in front of the recipient's unoccupied warehouse was considered reckless by the court in accordance with Section 435 of the Commercial Code. The court held that the driver must have been aware of the risks given the high likelihood of the unattended goods being stolen.

Therefore, the maximum liability amount under Section 431 of the Commercial Code did not apply and the limitation of liability clause was broken.


The Munich Higher Regional Court's remarks align with earlier decisions, including those of the Federal Court of Justice. The decision further clarifies the meaning of reckless behaviour and how to classify the unloading of valuable goods in front of an unattended warehouse without an agreement or instructions.

For further information on this topic please contact Olaf Hartenstein or Lars Kortländer at Arnecke Sibeth Dabelstein by phone (+49 40 31 77 97 0) or email (o.hartenstein@asd-law.com or l.kortlaender@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

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