Delivery of the goods in a sale of standard software. The decision of the German Federal Supreme Court was based on the following set of facts:
On 15.7.1991the claimant delivered a payroll programme that it had developed to the defendant for a price of 200,000 DM (= ca. 100,000 euro), payable in four instalments. The programme was first capable of being called up on the defendant's data processing equipment in August 1991 and, after debugging by the claimant, the programme was capable of running in a limited way on the defendant's equipment from 22 October 1991. In the meantime the defendant paid the claimant the first instalment. In a letter of 11 December 1991 the defendant complained about further bugs in the programme and sought their correction. The claimant brought proceedings for the payment of the remainder of the sale price in an amount of ca. 150,000, — euro plus interest. The defendant claimed rescission of the contract and in a counterclaim sought restitution of the first instalment, plus interest, and the return of the payroll programme.
The Landgericht found for the claimant and rejected the counterclaim. Appeals to the Court of Appeal and the Supreme Court were fruitless. The Supreme Court explained in its decision that §§ 433, 359 ff BGB and § 377 HGB were to be applied, at least by analogy. As in other sale cases, in the case of a sale of standard software the goods were “delivered”, in the absence of agreement to the contrary, when they were placed by the seller — with the intention of performing the contract — within the sphere of power of the purchaser in such a way that the latter could examine them for the existence of faults. In the absence of any appropriate legal ground, for which there was also no sufficient need, and contrary to other opinions expressed in the legal literature on the question of “delivery”, the matter was not to be assessed by reference to whether a largely trouble-free trial run of the programme had been carried out, nor was it decisive whether the software had appeared to be bug free in a detailed test phase carried out while it was still with the claimant. Thus the software was delivered on 15 July 1991. The fact that some online-help functions were still unavailable did not affect this conclusion, since their absence influenced the usability of the programme and made the software faulty. At the end of the debugging process it was agreed between the parties on 22 October 1991 that the programme was — even though to a limited extent — capable of running and it was up to the defendant, according to § 377 HGB to check the goods again and to complain about faults without delay. Its complaints of 11 December 1991 did not however satisfy this requirement.
The following author examines the judgment from the point of view of Austrian law.European Review of Private Law