Why a “comprehensive analysis” cannot always be expected.
In industrial practice, the question regularly arises as to which specifications and parameters the buyer must inspect upon receipt of goods. For example, is a visual inspection of the packaging sufficient? Must all products be inspected, or are random samples sufficient? Is it necessary to review the supplier’s material certificate or conduct an chemical laboratory analysis?
Regarding the question of whether a chemical analysis is necessary, the Frankfurt Higher Regional Court recently set a new precedent with its decision of May 29, 2026 (Case No. 32 U 12/25).
Background
Pursuant to Section 377 of the German Commercial Code (HGB), a buyer of goods in B2B transactions is obligated to inspect the goods after delivery “to the extent that this is practicable in the ordinary course of business”. If defects are discovered during this inspection, the buyer must notify the seller of them without undue delay. If the buyer fails to do so, the goods are deemed to have been accepted, and the buyer loses its rights regarding unreported defects. However, this does not apply to the buyer’s rights regarding defects that are not detectable during a proper inspection. The decisive question in practice regarding recourse in this context is therefore: What specific inspections should the buyer have conducted upon delivery?
Key factors for ordinary course of business
Whether an inspection is appropriate is always a matter to be determined on a case-by-case basis. The starting point here is the principle that the provision of Section 377 of the German Commercial Code (HGB) is primarily intended to protect the seller. The seller shall be protected from being confronted with potential warranty claims long after the goods have been delivered.
However, this does not mean that the relevant provisions serve solely the seller’s interests. The buyer’s significant interests must also be taken into account, and in some cases, these may outweigh the seller’s interest in conducting an inspection.
Key factors in weighing these interests include, in particular, the costs and time involved in inspecting the goods, as well as the question of whether the buyer can conduct the inspection themselves or must engage a third party to do so. At the same time, the requirements placed on the buyer increase if there are concrete grounds for suspicion on the buyer’s part, or if it is apparent that the parties can expect significant consequential damages resulting from the defect.
The need for a “Comprehensive Analysis”
The case of the Frankfurt Higher Regional Court involved a buyer of clothing that significantly exceeded the permissible limits for nonylphenolethoxylates (NPEO). This defect could only be detected through a “comprehensive” chemical laboratory analysis.
A laboratory analysis of the clothing – which, in this case, could only be performed by an external laboratory – would have cost €1,052.79 and taken several weeks. Furthermore, the buyer had purchased finished products that were not intended for further processing, thereby ruling out the possibility of significant consequential damages resulting from the defect. Additionally, there were no apparent irregularities in the delivered goods.
In the opinion of the Higher Regional Court, these aspects in particular are to be regarded as significant and clearly argue against such an extensive obligation on the buyer in the buyer’s duty to inspect. The time and cost involved are not reasonably proportionate to the seller’s interest. Consequently, the Higher Regional Court of Frankfurt ruled that a “comprehensive” chemical laboratory analysis of the goods could not reasonably be expected of the buyer and was therefore not practicable. In doing so, the Higher Regional Court of Frankfurt also follows the established case law of the Federal Court of Justice (BGH).
Chemical laboratory analysis of specific properties during incoming goods inspection
In the contrary, the Higher Regional Court of Hamm ruled otherwise in its decision of June 25, 2010 (Case No. I‑13 O 156/08) and deemed a chemical laboratory analysis necessary. This case involved shipment of steel that had an excessively high carbon content.
A laboratory analysis of the steel would have taken 24 hours and incurred costs of €50. Apart from the shorter duration and lower costs, a key factor here was that the steel had been further processed and thus posed a significant risk of consequential damages resulting from the defect. The Higher Regional Court of Hamm based its decision on these aspects and on the fact that the carbon content was an expressly agreed-upon characteristic and could therefore be specifically tested for.
However, what was not addressed in the ruling of the Higher Regional Court of Hamm due to lack of relevance was the question of whether such a laboratory test had to be conducted for every single steel delivery or only on a sample basis. This is because in the case of the Higher Regional Court of Hamm, a sample-based test would have been sufficient, since the excessively high carbon content was present in every delivery.
Conclusion
Whether and to what extent chemical analysis is necessary depends, in particular, on whether the issue concerns specifically agreed-upon properties or the general chemical composition.
Apart from that, the history and nature of the business relationship also matter. If there have been grounds for suspicion in the past or with respect to the shipment in question, a laboratory analysis regarding the relevant characteristics may be necessary. In the case of serial deliveries of products that continue for years, it may be sufficient – simply due to the effort involved and the fact that quality assurance is often contractually shifted to the supplier – to conduct no laboratory analysis at all or only random sampling.
Ultimately, contractual provisions also play a role, as they can determine the scope of the necessary inspections.
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