Warranty

The guarantee, warranty or guarantee defects determined the legal consequences and claims which the buyer under a contract of sale in which the seller has delivered defective goods or thing. Also in the works contract, there is a warranty for defects of the work produced. From the statutory warranty, the warranty is to be distinguished; this is so far voluntary, as there is no legal obligation to make a guarantee promise.

In the European Union Directive 1999/44/EC determines minimum standards for ensuring the commercial sales to private consumers. In particular, the limitation period shall be two years from delivery does not fall below and within the first six months, the burden of proof normally must lie with the seller. Warranty claims made ​​against the seller, not the manufacturer of the goods.

  • 2.1 General
  • 2.3 The primary claims of warranty 2.3.1 Improvement / exchange
  • 2.4.1 Price reduction
  • 2.4.2 conversion
  • 4.1 In the EU ( EC law )
  • 4.2 Germany
  • 4.3 Austria

German warranty law

Term and designation

In the context of contract law reform of the Civil Code (BGB ), which entered into force on 1 January 2002, the purchase contract law has been extensively revised. In particular, the rules governing the consequential rights were greatly changed.

Previously, these provisions were referred to as warranty; the point was to make clear with the label that it is a scheme that was completely separated from the general part of the law of obligations. The new regulatory regime, however, no longer has this property. The deficiencies in the legal contract of sale is now essentially determined by the general law of obligations; whose rules are modified only in certain context by the purchase contract law, but are otherwise applicable. Therefore, it is often argued that the term " guarantee " should be abandoned now. Since the seller is now in principle according to the normal rules for defects, ie on its side a failure to fulfill its obligations must adhere, should now be better to speak of liability. The Civil Code uses the term " warranty " even only marginally (see § 358, § 365 BGB) and speaks otherwise of individual claims for defects.

In sales law in § 437 BGB and in contracts for work in § 634 BGB the rights are called, available to the purchaser or the purchaser in the contract work law in case of defects. The detailed design of the individual claims for defects resulting from the 634 German Civil Code referred to in § 437, § various provisions of the purchase and service contract law, reference being made in part to requirements of the general law of obligations. The control system of the law with multiple references is complicated and for non-lawyers, therefore, not always understandable.

Overview of warranty rights

Individual defects rights under German law:

  • In the purchase right: (initially only ) are entitled to supplementary performance ( § 439 BGB),
  • Then right to rescind ( § 440, § 323, § 326, paragraph 5 of the Civil Code and the regulations referred to therein ),
  • Or reduction ( § 441 BGB),
  • Claim for damages ( § 437 No. 3 BGB and the rules named therein ),
  • Compensation for futile expenses ( § 284 BGB ),
  • In Construction Law: (initially only ) are entitled to supplementary performance ( § 635 BGB),
  • Then entitled to reimbursement of expenses and cash advance in self-performance ( § 637 BGB)
  • Or right of withdrawal ( § 634 No. 3 BGB and the rules named therein ),
  • Or reduction ( § 638 BGB),
  • Claim for damages ( § 634 German Civil Code No. 4 and the rules named therein ).

However, the application of warranty law is not limited to the contract types listed above, but is also applicable to rental, travel and gift agreements.

The warranty covers both the liability for defects, ie defects relating to the nature of the object of purchase, as well as for legal defects, such as the lack of property ( unless a bona fide purchase is possible). A to be represented by the seller deficiency must transfer of risk (ie, usually according to § 446 BGB in delivery of the item ) are present ( § 434 paragraph 1 sentence 1 BGB); However, later occurring defects may be defects when they were already laid at the risk transfer in the bud ( so-called germ theory). Buyer of consumer goods ( = movable property ) the law ( § 476 German Civil Code) provides, as a fundamental proof relief to consumers that a defect which becomes apparent within six months of the transfer of risk, should already have been present when buying ( burden of proof ), it unless the contrary would be obvious.

Defect

A material defect is at the following prerequisites before:

  • Deviation from the agreed quality, § 434 paragraph 1 BGB. If there is an agreement about the quality, then there is no defect, if the thing at risk has the agreed quality. Without such an agreement then there is a material defect, if it is not suitable for the expected fitness for a particular purpose, § 434 paragraph 1 sentence 2 No. 1 BGB, if it is not suitable for ordinary use or has a texture that not the usual quality of goods of the same type corresponds to § 434 paragraph 1 sentence 2 No. 2 BGB.
  • Belong according to nature. § 434 paragraph 1 sentence 3 BGB characteristics of purchasers and the public statements of the seller or manufacturer can be expected ( especially from advertising ). Example: A car is touted in advertising, with a consumption of three liters, while the actual consumption of five liters.
  • Wrong delivery, it will be delivered (so-called aliud ) or delivery of too small an amount, § 434 paragraph 3 BGB other than the goods sold. Example: The seller delivers instead a washer dryer. No defect is present on the other hand, if the seller makes clear in delivery, that it just is a part of performance and the rest will be entered later. In this case, there is a lack of transfer of the entire goods.
  • Faulty installation instructions (so-called IKEA clause) or improper installation by the seller or its agents, § 434 paragraph 2 BGB. It being noted that the faulty installation instructions then is not a defect if it succeeded the thing to mount correctly. In this case the buyer has no material damage. This was confirmed by the Higher Regional Court of Munich.

The thing purchased has a defect if third parties can make on the matter rights in terms that were not agreed on the purchase, § 435 BGB. Here it 's all about rem or debt rights. Example: A third party is the owner of the goods or has a tenancy or lease rights.

For land purchases, it represents a defect if a non-existent law is still registered in the Land Register, § 435 sentence 2 BGB, because the risk of acquisition in good faith that right there. For example, a right of residence, which took care of itself, but is still registered in the Land Register.

Burden of proof

Generally for the burden of proof, § 363 BGB: If the buyer the thing accepted as fulfilling or taken the matter in the work contract law the purchaser ( § 640 BGB) shall rest with the purchaser or the purchaser the burden of proof for a) the defect itself and b ) for that this defect was present from the beginning, when they make claims for defects. However, notwithstanding the sale of consumer goods ( § 474 BGB) partially according to § 476 BGB to provide proof in the form of a conjecture: Here, in the first six months after delivery suggested that the defect already existed at the handover, " unless this presumption is incompatible with the kind of thing (for example, typical wear parts and perishables ) or defect ( for example, because the defect is so obvious that when buying he would already have to be noticed ) incompatible ". Only then the buyer must prove the defectiveness upon delivery.

The big problem with the burden of proof is that it is the buyer - is not possible without demonstrating the considerable expense of a report that a lack of start, it was available - especially the consumer. The Court should, therefore, in such cases, always remember that a loss event usually out of himself points out that the defect was present just from the beginning, as other goods of this genus do not have those same claims experience and otherwise not be seen is how the customer should have caused this damage.

Since there is a duty to ensure from the purchase contract, these are only claims against the seller, but not against the manufacturer or middlemen in the supply chain.

Disclaimer ( Sale of Goods )

In contrast to the ( voluntary ) Warranty is one of the defects liability at the statutory default content of a purchase contract. In principle, the relevant statutory provisions, however, are dispositive law and therefore can be limited by agreement between seller and buyer, or even completely excluded ( that this is, is shown by the way in § 444 BGB, which must be based on the admissibility of a disclaimer, because otherwise he might not make sense to set exceptions to the effectiveness of such an agreement ).

The fundamental possibility of the disclaimer or limitation of liability has been significantly limited under the law of obligations modernization in 2002. § 475 para 1 BGB bans in the case of a sale of consumer goods subject to an exclusion or limitation of damages claim (cf. § 475 para 3 of the Civil Code ) the general exemption from the seller of defects liability claims of the buyer. Since the possibility of the disclaimer results directly from the Civil Code, are any references to an ( alleged ) EU sales law, as they are often found on online auctions, simply wrong ( especially since the underlying EU directive merely the prohibition of the disclaimer in the the context of the sale of consumer goods, but not its admissibility normally regulates ).

An admissible per se exclusion of the claim for damages in the context of a sale of consumer goods, however, can - if it was made in the context of general terms and conditions - lit with new sale items in accordance with § 309 No. 8. b BGB be ineffective; another barrier results from § 444 BGB in the event that the seller intentionally conceals a defect or has accepted a so-called quality guarantee. These latter rules apply in the context of their applicability outside of the sale of consumer goods and in respect of all warranty claims of the purchaser.

Even if the requirements of § 444 German Civil Code are not met, it may happen that an agreed disclaimer is not to be construed in unrestricted sense. Is decisive in this respect not only the wording of the exclusion order, but the entire text of the treaty. A guiding principle of the Bundesgerichtshof states: " a certain condition of the goods and a standard exclusion of liability for defects are in a contract of sale at the same time agreed, this is regularly interpreted as meaning that the disclaimer is not for the lack of agreed quality ( § 434 paragraph 1 sentence 1 BGB agents), but should apply to those defects which consist in that the item is not suitable for the expected fitness for a particular purpose ( § 434 paragraph 1 sentence 2 No. 1 German Civil Code ) and is not suitable for ordinary use and can not have any texture that is usual with things of the same type and which the consumer after the sort of thing expected ( § 434 paragraph 1 sentence 2 No. 2 BGB). "

Also in Austria shall submit to the Supreme Court contractual liability exclusions (warranty restrictions ) from very restrictive.

See also: main deficiency

Subsequent performance

The consequences of the defect arising from the legal system of the BGB. For the purchase of this law 437 BGB are again listed in § declaratory.

The removal of the defect - - laws Systematically, the remedy of § 439 BGB is the Other warranty rights a priority. The remedy is possible in two ways. Firstly, through the delivery of a new item ( in legal language: Replenishment, ie, an exchange ) or by the removal of the defect ( in legal language: repair, such as a repair).

Is to provide what type of remedy, in principle, determined by the buyer and not the seller; a contractual transfer of the right to vote is possible in principle, but not the sale of consumer goods possible. Therefore, the practice of one Chickens to the manufacturer, which is currently very popular in sales of electrical equipment is not to be permitted, unless the buyer requests a replacement. As long as the Seller may exchange the matter without further ado, this desire of the buyer is to match. If the seller is not limited thereto, and insists on the return package, so he violated his duty to remedy, making liable for damages (damage here would be the cost of a replacement purchase the item from another seller). Something else can only arise if the exchange is not connected or possible only with considerable effort ( § 439 paragraph 3 sentence 1 BGB).

The right to subsequent performance can also be completely ruled out, such as when the repair is not possible and the thing it can not be replaced. Then the buyer will only have the right to withdraw, purchase price reduction or compensation.

In contrast lies in the work contract law in the case of Nacherfüllungsverlangens of the customer ( 'Customer ') the right to vote at work Entrepreneurs: The entrepreneur can decide whether to remedy the default or a new work created (cf. § 635 para 1 BGB).

Compensation for use when exchanging a product:

According to a judgment of the Court of Justice of the European Communities ( ECJ) of 17 April 2008, is one such compensation for use in the event that the scheme is a " seller if he has supplied a breach of contract consumer goods permitted by the consumer to pay compensation for the use of the non-conforming goods until their replacement with new goods to demand "with the EC Directive 1999/44/EC incompatible. Following this judgment is to pay any compensation for the use of the defective item for consumer goods after the Federal Court to the subsequent delivery (see above).

Statute of Limitations ( Sales Convention)

According to § 438 Section 1 No. 3 of the German Civil Code, the limitation period for warranty claims since January 1, 2002 generally is two years, beginning with delivery of the purchased item. This can be contractually basically changed completely excluded or extended up to 30 years. An exception applies only to the sale of consumer goods ( § 474 BGB ), where a reduction is only possible when buying used stuff and there to a maximum of one year ( § 475 para 2 BGB). A reduction of the limitation and exclusion of claims for defects (such as wearing parts ) for new goods is, however, not possible with a sale of consumer goods prior to notification of the defect to the entrepreneur. However, results from a reverse conclusion of § 475 paragraph 2 BGB, that a reduction of the limitation or exclusions referred to in § 437 claims after notice to the contractor is very possible.

In non-merchants a stronger shortening or a disclaimer can be agreed in addition for new things only in individual contracts, but not by terms and conditions.

Austrian warranty law

General

Warranty is regulated in § § 922 ff Civil Code. The warranty law in the EU was content unified by the EU Directive 1999/44/EC and implemented in Austria since January 1, 2002. In contrast to German law ensuring the reform of the German Commercial Code for Corporate Code ( UGB) on 1 January 2007 Austria is central, like most performance problems, and generally governed by the Civil Code. If it is a consumer business, warranty claims can not be excluded or limited: Prior knowledge of the defect, the warranty rights standards are therefore mandatory.

Warranty regulates of any fault strict liability of the debtor for deficiency of service provided, which helps to balance the subjective equivalence - ie the fact that transferor and transferee have expressed by the will to conclude a contract, they should be the respective service in exchange for the respective contribution worth each Agreed; For example, that the transferee is willing to take a plasma TV for EUR 1000, - to buy, and the transferor is ready, at this price the plasma television for sale.

By aids (improvement / replacement, price reduction, cancellation ) ensuring the subjective equivalence to be restored.

The statutory warranty period is in Austria at moving things two years in immovable property for three years and livestock deficiencies six weeks. The warranty period begins with the complete delivery of the power.

Under deficiency is defined as a deviation of the service provided by the contractual amount due. Any deviation from the contractually agreed quality or quantity constitutes a deficiency dar. 922Vorlage §: § / Maintenance / RIS Search Civil Code speaks of " conditional or commonly expected properties ." It is possible to distinguish between defect and defect, where the law the term defect is not used and is therefore represented by a part of the doctrine. A material defect is an inherent defect in the goods physically. A defect is a deficiency of the legal position, which the seller must give the purchaser under the contract.

If the defect within six months after delivery out, is generally assumed that the defect already existed at the time of delivery. After six months, the buyer or plant Appointed must prove that the defect at the time of handing over the bottom was already at least according to present.

The primary claims of warranty

The Austrian warranty law is a two-tier system. First, the ill -fulfilling transferor shall be given the opportunity to make compliance with the contract and establish equivalence. Since the reform of the primary claims of warranty are improving and sharing.

Improvement / replacement

Replacement of the item takes place only at the genus debt. The improvement or replacement must be made within a reasonable time with as little inconvenience to the transferee, the costs borne by the transferor. The primary warranty remedies is also the "Supplement of the Missing " counted if it is the lack is a quantity shortage. The transferee has the right to choose between these claims.

The secondary claims of warranty

If the primary claims of warranty for the transferor is impossible or impracticable, the secondary warranty remedies come into play: price reduction and cancellation of the contract. These aids are design rights and any claims. Untunlichkeit means that repair or replacement can be made only with a disproportionate effort (details in § 932Vorlage: § / Maintenance / RIS Search Section 4 Civil Code).

Price reduction

Reduction in price means that the price of the item will be adjusted to the value of the thing. Was the price paid for the defective good, but was made ​​of defective goods. Consequently, the now -reduced price equivalent to the value of the defective item. (see also: pricing )

Transformation

Conversion means that the contract is terminated. The title does not apply retroactively ( ie at the time of the former contract ) away, but from the date of conversion (ex nunc ), so that the transferor are only unjust enrichment claims are available. Can be changed only with non- minor defects. In other words, the transferee may only reduce the price to a mere minor defect.

Cause of action Federal Court of Justice of Germany
262752
de