General Information on Warehouse Agreements
According to § 467 German Commercial Code (HGB), a warehouse agreement is a special form of the contract of safe custody against payment (according to §§ 688 et seq. German Civil Code (BGB)) under German commercial law. It is particularly shaped by the storage and safekeeping activities of the warehouse keeper, which they perform within the scope of a commercial enterprise without necessarily being a merchant. In this context, storage is defined as the provision of premises in which the goods to be stored or the merchandise can be placed for a certain period of time. Through storage, the warehouse keeper is obliged to take care of the goods. They must therefore protect the stored goods and their material substance from danger, in particular, by selecting suitable storage space and taking the necessary dutiful protective measures.
The warehouse agreement must also be distinguished from other forms of contract in the field of commercial transactions:
- It differs from the freight or forwarding contract: it assumes custody and storage as a primary performance obligation, whereby delivery to customers can at most be a secondary obligation, unlike in the freight or forwarding contract.
- A logistics contract, which is not independently regulated in German law, is distinguished from a storage contract because it has additional services such as the commissioning or packaging of the goods as a further main object.
- In contrast to the rental contract for storage facilities (§§ 535 ff. BGB), the warehouse keeper does not (only) need to provide the use of the storage facilities, but also the storage and securing of the stored goods.
Conclusion, Content and Form of the Warehouse Agreement
In principle, German warehouse agreements can be concluded informally by agreement of the contracting parties. Therefore, conclusive action may be sufficient for the conclusion of a contract, such as the issuance of a warehouse receipt or warehouse warrant and the storage of the goods or the entry in the warehouse register. The warehouse keeper can refer to § 362 HGB, so that the sending of the goods is considered an offer for the conclusion of a warehouse agreement. In regular practice, however, the contractual modalities are agreed by drafting a framework agreement with the help of a lawyer, which is recommended at all times.
Furthermore, the provisions of the HGB are usually superseded by general terms and conditions. For storage by a freight forwarder, the General German Freight Forwarders’ Terms and Conditions must be observed, which contain special regulations on the storage of goods. In addition, specific general terms and conditions apply to special storage transactions, e.g. for the storage of furniture the General Storage Conditions of the German Furniture Transport (ALB) or for the storage of refrigerated goods the General Conditions for Refrigerated Warehouses (ABK).
Only by concluding a written contract and the appropriate drafting of general terms and conditions can the interests of your company be adequately secured and any liability risks or ambiguities eliminated. Our commercial lawyers are experienced in drafting German warehouse agreements and can thus support you in achieving the best results in contract negotiations.
German warehouse agreements can be concluded in different manifestations:
- As a rule, the separate storage of the goods subject to the contract (so-called “special storage”) is stipulated.
- If the depositors involved expressly agree, the warehouse keeper is entitled to store fungible goods mixed with other goods of the same kind and quality, so that a collective storage exists (cf. § 469 HGB).
- If the contracting parties want to agree on the basic rules for future warehouse agreements still to be concluded, a framework warehouse agreement must be concluded as a continuing obligation of its own kind.
In principle, all movable goods can be considered as stored goods, in particular all merchandise but also gases and liquids in containers, as well as waste. A storage contract for coins and banknotes is also conceivable, but not for securities, since the Depotgesetz (Depot Act) applies to their safekeeping.
Rights and Duties of the Contracting Parties
The main obligation of the warehouse keeper is the duty to store and keep the respective stored goods. The concrete form of this obligation depends on how the storage contract was concluded, i.e. whether special storage or collective storage exists or special agreements were made in a framework contract. The subject matter of the regulation can be, among other things, whether only a closed room may be used as a warehouse or whether the goods must be specially packed for security. The goods must be stored so that there are no apparent or avoidable risks of damage caused. In doing so, the warehouse keeper must consider the special features of the stored goods, regularly inspect and monitor the warehouse, particularly concerning fire and moisture protection, and protect the goods against theft. Furthermore, the warehouse keeper has to comply with control obligations concerning completeness, freedom from damage and proof of entry and exit of the stored goods. According to section 472 HGB, the warehouse keeper is only obliged to take out insurance when specifically and expressly requested to do so by the depositor.
In return, the depositor must pay the agreed remuneration (“storage charges”). In addition, according to § 468 HGB, if dangerous goods are to be stored, the depositor is obliged to inform the warehouse keeper in writing in good time of the exact nature of the danger and, if necessary, of the precautionary measures to be taken. In addition, they must properly pack and mark the goods, if necessary, and provide documents. The depositor may thus be subject to far-reaching duties of disclosure and notification. Furthermore, the depositor is entitled to demand the return of the goods from the warehouse keeper at any time, according to § 473 HGB.
Required Documents for Warehouse Keepers
The warehouse warrant, the so-called receipt, the FIATA Warehouse Receipt (FWR) and the delivery note are of major importance in the warehousing business.
- The warehouse receipt (§§ 475c ff. HGB) certifies a contractual claim for restitution against the warehouse keeper. The warehouse keeper is not legally obliged to issue a warehouse warrant, but such an obligation may arise from a contractual agreement. The warehouse warrant can be issued in the form of a registered warehouse receipt or a negotiable warehouse receipt.
- According to § 368 BGB, the warehouse keeper is obliged to issue a warehouse receipt as a certificate of receipt.
- The FIATA Warehouse Receipt (FWR) has the economic function of a registered warehouse receipt and is a standard document in warehouse transactions of international trade.
- The delivery note authorises a buyer vis-à-vis the warehouse keeper to take delivery of the stored goods.
Termination of German Warehouse Agreements
The termination of German warehouse agreements is governed by section 473 HGB. According to this, the depositor may demand the return of the goods at any time. If the warehouse agreement is concluded for an indefinite period, the depositor may only terminate the contract by giving one month’s notice. They may only terminate without notice if there is good cause.
The warehouse keeper may demand the return of the goods after expiry of the agreed storage period. In the case of storage for an indefinite period, they may also terminate the contract in accordance with the aforementioned provisions and thereupon in turn demand repossession.