Return of goods after withdrawal: delivery, simultaneous performance and defences

After an effective withdrawal from a contract for goods, the return of the goods may remain outstanding as a separate claim for delivery. The next step depends on which goods are involved, who possesses them and how the return is linked to the restoration of the performance received under the contract.

This article deals exclusively with the return of goods after withdrawal. It explains simultaneous performance and common defences. Questions about an outstanding monetary claim or retention of title require a separate review.

The contract, withdrawal notice, handover of the goods and a complete record of their condition are decisive. These documents show whether a specific request for return can already be made or which facts still need to be clarified.

The basis of the claim for return

Withdrawal unwinds the contract when the applicable requirements are met. The performances already received must then be allocated for the purpose of unwinding the contract. For the goods, the first questions are whether they were handed over under this contract and whether the withdrawal notice covers this contract.

Section 921 of the Austrian Civil Code describes the effect of rescission and the restoration of performances received. It does not answer every practical question about handover. The contract, withdrawal notice and actual possession are also needed for that assessment.

The review starts by identifying the goods. A serial number, model, quantity and accessories may be decisive. Several deliveries require each item to be assigned to the relevant contract and handover.

How to identify the goods to be returned

A request for return must show which item is to be returned. A clear description is usually sufficient for one identifiable item. Collective deliveries or replacement devices require precise allocation to the delivery note, order and handover.

The claim concerns the goods owed in the unwinding of this contract. Another item replaces them only if that has been expressly agreed. Returning a similar item therefore does not automatically settle the claim.

Accessories and documents are also relevant when they were handed over together and form part of the goods under the contract. The record should distinguish the main item, accessories, consumables and personal belongings.

Which details clarify the handover

A return is easier to organise when the goods, possession and handover are clear before contact is made. The goods owed must be identifiable by model, quantity or serial number.

For possession, record the handover record, current location and correspondence. For condition, photographs, inspection reports and a description tied to a point in time are useful. The place and period for handover should be practically workable.

This short review separates identity, possession, condition and handover. Missing details can then be added before a request for return is drafted.

What simultaneous performance means for the return

Simultaneous performance means that linked performances are restored at the same time or in an agreed sequence. Section 1052 of the Austrian Civil Code expresses the principle that, in reciprocal contracts and under certain conditions, a performance may be withheld until the counter-performance is made.

For the return of goods, the specific link between the performances matters. Returning the goods may coincide with restoring the performance received. This creates a practical question: who hands over which item, at what place and time, and which performance is restored at the same time?

The phrase simultaneous performance does not replace a review of the contract and withdrawal. It also does not automatically establish that one party may refuse handover. The owed performances and any defence must be compared for that purpose.

Which defences against return require review

Defences may concern the withdrawal, the identity of the goods, their condition or the method of unwinding the contract. Each defence must be assigned to the specific contract and item.

A statement that the goods are damaged does not establish their condition by itself. The relevant points are the time, cause, extent and evidence of the change. If the goods were used or passed on, record who possessed them and when.

An agreed inspection or collection can also affect the practical process. Confirm such an arrangement in writing. It should be kept separate from a final legal assessment of the claim for return.

Documents that matter for enforcement

A clear chronology is enough for the initial review. It should show the contract, order, delivery, withdrawal, previous requests and replies in time order. Give every attachment a short description and date.

Photographs and condition reports should be assigned to the correct point in time. For devices or machines, secure serial number, operating hours and accessories. For movable goods, the current location may also matter when arranging handover.

A specific return proposal is particularly helpful. It should name the item, place of handover and a possible period. This quickly shows whether a factual question remains or a legal clarification is required.

Return of goods after withdrawal: delivery, simultaneous performance and defences