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Emergency

Damages instead of performance: setting a deadline and enforcing

If the contract partner does not render their performance, you can under certain circumstances demand damages instead of performance. The requirement is usually that you first set them an appropriate deadline without success. Only then do you have the choice to free yourself from the contract and demand compensation.

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Your chances of getting your money back

Damages instead of performance usually require that you set the debtor an appropriate deadline for performance or subsequent performance without success (§ 281 BGB). Only after it expires can you demand compensation for the loss instead of the performance.
In certain cases the deadline setting is dispensable, for example with a serious and final refusal to perform. The claim covers the loss you suffer due to the absence of the performance.

What you should do now

  1. 1

    1. Set a deadline

    Demand the performance in writing and set an appropriate deadline.

  2. 2

    2. Await expiry

    Let the deadline pass if performance is not made.

  3. 3

    3. Quantify the loss

    Determine the loss, for example the extra costs of a replacement purchase.

  4. 4

    4. Assert the claim

    Demand damages instead of performance in writing.

How to spot the scam

  • Damages are demanded immediately without setting a deadline.
  • The set deadline is unreasonably short.
  • The loss is not documented comprehensibly.

Frequently asked questions

Must I first set a deadline?

Usually yes. You can mostly demand damages instead of performance only after you have set the debtor an appropriate deadline for performance or subsequent performance without success (§ 281 BGB). The deadline setting gives them a last chance to perform properly.

When is no deadline necessary?

A deadline setting is dispensable if the debtor seriously and finally refuses the performance or special circumstances justify immediate assertion. With a fixed-date transaction, other rules can also apply. In case of doubt, however, a deadline setting is the safe route.

Which loss can I demand?

The loss you suffer because the performance fails to appear, for example the extra costs of a necessary replacement purchase or lost profit. You must set out and prove the loss. Instead of damages you can, depending on the situation, also rescind the contract.

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General information for self-help, not legal advice (RDG). In case of a high loss or uncertainty: contact a consumer advice center or a lawyer.