No original documents – no freight charge?

Can the shipper refuse to pay the freight charge because original transport documents have not been sent?

In everyday practice, it happens time and again that shippers refuse to pay the freight charge on the grounds of missing original documents. This is all the more annoying if a transport company has sent the original documents to the sender by post after the transport has been properly carried out and these originals are lost in the post or at the sender’s premises.

What is the legal situation?

Under the contract of carriage, the transport company is obliged to transport the goods from one place to another. Pursuant to § 420 of the German Commercial Code (Handelsgesetzbuch), the freight charge must be paid upon delivery of the goods. If the parties have not made a special agreement regarding the due date of the freight charge, the carrier may issue an invoice immediately after delivery of the goods and demand payment.

Are deviating agreements possible?

The statutory due date rule can be waived by individual agreement between the parties or by general terms and conditions.

Shippers and carriers regularly agree on a specific payment term for the payment of freight charges, which is to be calculated according to the calendar. If such an agreement exists, the parties are bound by it and the transport company can demand payment within the agreed payment period. The start of the payment period is often not linked to the delivery of the goods, but to the receipt of the freight documents and freight papers such as the consignment note, delivery note and pallet note. Such an agreement is generally possible without hesitation, even in general terms and conditions, if the sender itself is a transport company or freight forwarder who requires these documents in order to invoice its own client.

If the payment of the freight charge is made dependent in the General Terms and Conditions on the submission of original receipts, the first question is whether the General Terms and Conditions have been effectively included in the transport contract at all. For this purpose, it is sufficient if the shipper declares prior to the conclusion of the transport contract that the contract is only concluded with the inclusion of its General Terms and Conditions and the transport company agrees to this by express consent or tacitly by not objecting. In addition, there must have been an opportunity to take note of the General Terms and Conditions.

Does the inclusion of the General Terms and Conditions mean that the sender may always refuse to pay the freight charge if the original documents are missing?

Even if the General Terms and Conditions had been effectively agreed, such an agreement does not mean that the freight may always be withheld due to a lack of original receipts. According to a decision by the Regional Court of Wuppertal on 15 March 2012 (case reference 6 S 63/11), the sender is not permitted to invoke the lack of original receipts in accordance with the principles of good faith (§ 242 Bürgerliches Gesetzbuch) if he has received the freight charges from his own client and is not threatened with any disadvantages due to the lack of original receipts. If the originals have been lost, the freight charges can still be claimed.

Grau Rechtsanwälte PartGmbB advises and represents freight forwarders and carriers, as well as transport and liablity insurers from Germany and abroad in the area of transport law.

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