Order construction of a beach cruiser Customer does not pay and report for fraud.
July 7, 2009 | 20,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello!
I build beach cruisers as a hobby. I was approached to build a cruiser for this person. After discussing everything, we came to the following agreement:
The client will pay up to 800 euros for the materials, plus a fee upon completion. My then-girlfriend was a witness when the client approached me saying "money is no object" for the completion of the project. The cruiser was supposed to be finished by Christmas and was delivered despite the outstanding payment.
It was also agreed that the advance payment for the materials (parts) would be made monthly in installments of 200 euros. The project was completed and delivered exactly on Christmas. However, the client refuses to pay the outstanding fee for the work and design of the cruiser.
Now the client has reported me for fraud (delivering goods of lesser value, inflated invoice). The question now is: is it legal/possible to succeed with such a report? On the other hand, is there a way to still receive my remaining fee despite the "verbal agreement"? Furthermore, is the cruiser not actually the property of the client since it was not fully paid for? I even incurred a loss on the project because the actual costs were not calculable beforehand due to the unique nature/artistic object of the work.
Best regards.
Dear inquirer,
Thank you for your inquiry!
I would like to address your questions considering your input and the situation you described as follows:
Firstly, it should be noted that you have entered into an oral contract under § 631 of the German Civil Code with the customers for the creation of the mentioned cruiser.
It was additionally agreed that the customer would pay a fee, although the exact amount was not specified.
However, this does not negate the obligation to pay a fee.
In such a case, § 632 (2) of the German Civil Code applies, which I have included below for better understanding:
§ 632 (2) BGB
"If the amount of the fee is not determined, the fee determined by a tariff shall be considered as agreed, in the absence of a tariff, the usual fee."
Therefore, a claim for compensation has definitely arisen according to this provision, and the customer must pay you the agreed actual material costs as well as the usual fee for it (it would be helpful, for example, to inquire with the Chamber of Commerce regarding the usual fee in such cases).
Criminal liability for fraud could be considered, as fraud under § 263 of the German Criminal Code requires that you have fraudulently and unlawfully enriched yourself at the customer's expense through deception.
If the goods were only worth 400 euros (agreed selling price) and you had written down twice that amount, it would constitute deception and criminal liability for fraud.
This case would be comparable to if a new lamp was installed in your car workshop and two were written on the invoice. However, as long as this was provably unintentional and not intentional, fraud is ruled out.
The amount of the invoice as such, especially in terms of labor costs (keyword excessive wage), does not in itself constitute fraud, and again, an excessive amount must have been intentionally and knowingly set.
Please clarify if necessary within the scope of the follow-up option how exactly this happened.
If you have transferred ownership of the cruiser to the purchaser, thereby fulfilling your obligation, you have also transferred ownership to the purchaser. This is my assumption based on your description.
This is not evident from your description.
I hope that I have provided you with an initial legal orientation and wish you success in your further actions.
I would like to point out the following to you:
The legal advice I have given is based solely on the information provided by you. My response is only a preliminary legal assessment of the situation and cannot replace a comprehensive examination of the facts. By adding or omitting relevant information, a completely different legal assessment may result.
I hope that my explanations have been helpful to you. You are welcome to contact me through the follow-up option on this platform or via my email address.
I wish you a pleasant Thursday evening!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/3088316
