Global supply chains have been disrupted by the Covid-19 pandemic. Numerous contracts can no longer be fulfilled or can only be fulfilled with a delay. However, the crux of the liability issue lies explicitly in the clauses.
A lack of raw materials and interrupted supply chains - more and more procurement managers in the packaging industry are reporting massive bottlenecks. Paper, industrial metals and all plastics in particular are becoming scarce. For many manufacturers of cardboard packaging, films and the like, this means cutting back on production and setting aside extra money. Be it for additional material, transport and logistics costs or possible claims for damages along the supply chain. But at whose expense is the failure to deliver? Can a supplier invoke force majeure due to the coronavirus?
No goods received
If deliveries are delayed or fail to materialise altogether, costs can run into the millions. So it's no wonder that buyers quickly Claims for damages due to non-fulfilment become loud. However, it is first necessary to check whether there is a debtor's delay in accordance with Section 286 BGB. Is the supplier responsible for the delay or is there a fixed delivery date that has been exceeded? Are there any agreed reasons or considerations in this context that justify the delay and rule out a possible default?
If this is not the case, buyers have Several options. After setting a grace period, they can withdraw from the contract or demand compensation in place of the undelivered goods. In addition, there is the option of insisting on compensation for the damage caused by the delay as soon as the delay occurs.
God's contribution to the treaty
In order to avoid such problems, buyers and suppliers should ideally agree on dates, deadlines, measures to be taken in the event of a delay and possibly reasons that justify a delay in the purchase contract. Particularly in the case of international treaties it is also advisable to expressly include clauses on the so-called Force Majeure or the Acts of God.
As the name suggests, this refers to possible scenarios that could neither be foreseen nor prevented by taking the utmost reasonable care. Typically, this includes events such as natural disasters, wars, political unrest and epidemics. A strong indication of the existence of force majeure are, above all, official warnings and measures.
Delivery cancellations due to corona
With the current business closures, quarantine orders, travel warnings and border closures, it can therefore be assumed that the Covid-19 pandemic falls under such force majeure clauses. If suppliers invoke this in the event of delivery delays, the contract can generally be cancelled and they can be released from all performance obligations.
However, in individual cases it depends on the exact wording in the contract on. If, for example, a supplier fails to inform its contractual partners of impending delays despite an agreed duty of notification, it may no longer be able to invoke force majeure in such a case.
[infotext icon]Our guest author Felix Korten is a lawyer and board member of Law firm Korten Rechtsanwälte AG with offices in Hamburg, Munich and Göttingen. He also has many years of experience as managing director of several companies. In 2021, he was appointed to the Senate of Economy[/infotext].Bottlenecks in the supply chain: when packaging becomes scarce
