## Facts

- E. Gu. (EG) stored household goods in K. B.’s (KB) warehouse under KB’s standard-form storage contract.
- The contract included a standardized clause stating that KB would be liable for loss of or damage to stored goods only if KB or its agents were at fault.
- The same clause placed the burden of proving KB’s (or its agents’) fault on EG as the bailor (customer).
- EG later fell behind on storage fees, and KB sued EG for the unpaid balance.
- EG counterclaimed, alleging that some goods had been damaged and other goods had been stolen while in KB’s custody.
- Under the German Commercial Code, in disputes over loss of or damage to goods while stored, the bailee (the warehouse) bears the burden of proof regarding absence of fault.
- The appellate court ruled for KB on the claim for storage fees and dismissed EG’s counterclaim, applying the contract clause that required EG to prove KB’s fault.
- EG appealed to the German Federal Court of Justice (Bundesgerichtshof), challenging the dismissal of his counterclaim on the basis of the standardized burden-shifting term.

## Issues

1. Whether a standardized clause in a warehouse’s storage contract that shifts the statutory burden of proof for loss of or damage to stored goods from the bailee to the bailor is valid and enforceable under German law.

## Decision

- The court held that the standardized clause shifting the burden of proof from the bailee (warehouse) to the bailor (customer) is not enforceable.
- The statutory allocation in the German Commercial Code—placing the burden of proof on the warehouse in cases of loss or damage during storage—controls.
- The court rejected the lower court’s approach to the counterclaim to the extent it depended on enforcing the clause requiring EG to prove KB’s fault.

## Legal Principles

- In warehouse-storage relationships governed by the German Commercial Code, when goods are lost or damaged in the warehouse’s custody, the bailee bears the burden of proof regarding lack of fault.
- Standardized contract terms cannot displace a statutory burden-of-proof rule that assigns the proof burden to the party controlling the storage conditions and access to relevant information.
- A standardized term that materially worsens the other party’s position by reversing a statutory allocation of proof in this setting is ineffective, and the dispute must be evaluated under the statutory proof rule rather than the clause.

## Conclusion

The Bundesgerichtshof held that a warehouse may not rely on a standard-form contract clause to shift to the customer the statutory burden of proof for loss of or damage to stored goods; instead, the German Commercial Code’s rule placing that burden on the warehouse governs the customer’s claim.


Opinion of the German Bundesgerichtshof in the Matter of E. Gu. v. K. B., BGHZ 41, 151 (Ger. BGH 1964)