You Might Be Thinking…

“Once the machine is physically in the hall, the contract is fulfilled.”
Not quite. For complex equipment, delivery includes installation and commissioning – otherwise the seller’s obligation is not properly fulfilled, and the buyer may withhold payment.

Clients Often Ask Me…

• When should the handover protocol be signed – at delivery or after installation?

• Can I withhold part of the purchase price until the machine is operational?

• Which defects can I claim immediately, and which only after running the machine?

• When does the risk of damage transfer – unloading or commissioning?

• What if installation is carried out by a third party?

Legal Framework in Brief

• § 2095 Civil Code: The seller must deliver the goods in the agreed quantity, quality, and condition.

• §§ 2121–2125 Civil Code: Risk of damage transfers upon receipt, unless the parties agree otherwise (e.g. after installation).

• The handover protocol is key evidence – it confirms receipt without or with reservations.

• If installation is part of the contract, it is considered a seller’s obligation.

How to Proceed in Practice

1. Clear Contract Terms

• Define whether “delivery” means transport only or also installation and commissioning.

• Link the final payment to the signing of the handover protocol.

2. Handover Protocol

• Signed only after installation and testing of functionality.

• May include reservations (e.g. minor unfinished work).

3. Risk and Liability

• Risk may transfer upon unloading or only after commissioning.

• Always define this clearly in the contract – otherwise disputes arise if damage occurs during installation.

4. Warranty and Defects

• Defects identified during installation = defects at delivery.

• Defects appearing later → handled under warranty or statutory defect liability.

Risks and Common Mistakes

• Unclear definition of delivery → seller claims delivery at transport, buyer expects installation.

• Missing protocol → difficult to prove when the machine was operational and in what state.

• Full payment before installation → buyer loses leverage.

• Undefined liability during installation → disputes if damage occurs.

Lawyer’s Checklist

✔ Define in the contract whether installation is part of delivery.
✔ Link final payment to the handover protocol.
✔ Specify who bears risk during installation.
✔ Record any reservations in the protocol.

FAQ

When should the handover protocol be signed?
After installation and testing, not just at unloading.

Can I withhold part of the price until commissioning?
Yes, a staged payment mechanism tied to the protocol is advisable.

Who is liable if the machine is damaged during installation?
Depends on the contract – without clear terms, disputes are common.

What if installation is carried out by a third party?
Responsibility must be clearly allocated – otherwise the seller may avoid obligations.