Warranty , including liability for defects or deficiencies guarantee , in German means Schuldrecht the once marriage need for a poor performance, in particular the liability for property damage and legal defects ( BGB).
In the case of a sales contract , the seller must guarantee a defective product or item . There is also a guarantee for defects in the work produced in the contract for work. There are also separate warranty regulations for rental , travel and gift contracts .
In the European Union , the Consumer Goods Directive (EG-RL 99/44) defines uniform minimum standards for the guarantee of commercial sales to private end consumers. In particular, the limitation period must not be less than two years from delivery. As a rule , the burden of proof must lie with the seller within the first six months . The warranty claims exist against the seller, not the manufacturer of the goods.
Duration of the statutory warranty
- 2 years in Germany and the majority of EU countries
- 3 years in Sweden
- 5 years in Iceland and Norway on more durable products
- There are two different statute of limitations in the United Kingdom: 6 years in England, Wales and Northern Ireland and 5 years in Scotland
- 6 years in Ireland
- In the Netherlands and Finland, the duration depends on the expected lifespan of the product.
German warranty law
Concept and designation
As part of the law of obligations reform of the German Civil Code (BGB), which came into force on January 1, 2002, the law of sales contracts was comprehensively revised. In particular, the rules on the consequences of defects have been changed significantly. Since then, there is no longer a special regulation on the guarantee for major defects when buying cattle.
The liability for defects was previously referred to as a warranty ; The point was to make it clear with the name that it is a regulation that was completely separated from the general part of the law of obligations . The new regulatory regime, however, no longer has this property. The right to defects in the purchase contract is now essentially determined by the general law of obligations; its regulations are only modified to a certain extent by sales contract law, but are otherwise applicable. It is therefore often argued that the term "warranty" should now be abandoned. Since the seller now has to be liable in principle according to the normal rules for defects, i.e. non-fulfillment of his obligations on his part, it is better to speak of liability for defects. The BGB itself only uses the term “warranty” in passing (cf. BGB) and otherwise speaks of individual claims for defects .
In the sales law in BGB and in the work contract law in BGB, the rights to which the buyer or the customer is entitled in the work contract law in the event of a defect are named. The more detailed design of the individual claims for defects results from the individual provisions of the law on sales and work contracts mentioned in , BGB, whereby in some cases reference is made to the provisions of the general law of obligations . The regulatory engineering of the law with multiple references is complicated and therefore not always understandable for non-lawyers.
Overview of warranty rights
Individual warranty rights are under German law:
- in sales law:
- in contract law:
- (initially only) entitlement to supplementary performance ( BGB), then alternatively
- Entitlement to reimbursement of expenses and advance payment in the case of self-improvement ( BGB) or
- Right of withdrawal ( No. 3 BGB and the regulations mentioned there) or
- Right of reduction ( BGB) or
- Right to compensation ( No. 4 BGB and the regulations mentioned there).
Defect (sales law)
The guarantee includes liability for material defects , i. H. Defects in relation to the nature of the object of purchase, as well as defects of title , such as B. the lack of property (if a purchase in good faith is not possible). A defect for which the seller is responsible must be present when the risk is transferred (i.e. usually in accordance with German Civil Code upon delivery of the item) ( (1 ) sentence 1 of the German Civil Code); however, defects that occur later can also be material defects if they were already “in the germ” when the risk was transferred (so-called germ theory ). When buying consumer goods (= movable items), the law ( BGB ) provides as a fundamental simplification of evidence for consumers that a defect that appears within six months of the transfer of risk should already have been present at the time of purchase (reversal of the burden of proof) unless the opposite is obvious.
Burden of proof
burden of proof : If the buyer has accepted the item as fulfillment or if the buyer has accepted the item under contract law ( BGB), the buyer or the buyer bears the burden of proof for a) the material defect itself and b) for it that this defect was present from the start when you assert claims for defects. Deviating from the sale of consumer goods ( BGB), according to BGB, a reversal of the burden of proof in the form of a presumption applies : In the first six months after handover, it is assumed that the defect was already present at the time of handover, "unless this presumption is included the nature of the thing (for example, with typical wear parts and short-lived consumer goods) or the defect (for example because the defect is so obvious that it should have been noticed when buying it) ”. Only then does the buyer have to prove the defect at handover.German Civil Code ( BGB) generally applies to the
The big problem with the burden of proof is that it is not possible for the buyer - especially the consumer - to prove that a defect existed from the beginning without the considerable effort of an expert opinion.
Disclaimer of liability
In contrast to the (voluntary) guarantee , liability for defects is part of the statutory standard content of a sales contract. Basically, the corresponding legal regulations are dispositive law and can therefore be restricted or even completely excluded by agreement between the seller and the buyer (that this is possible, incidentally, is shown by BGB, which must assume the admissibility of an exclusion of liability, because otherwise it could not sensibly specify exceptions to the effectiveness of such an agreement).
The basic possibility of exclusion of liability or limitation of liability has been considerably restricted in the context of the modernization of the law of obligations in 2002. consumer goods subject to an exclusion or a restriction of the claim for damages (see. para. 3 BGB) from the seller of warranty claims of the buyer, the general exemption. Since the possibility of exclusion of liability arises directly from the BGB, any references to an (alleged) EU sales law, as can often be found in online auctions, are simply wrong (especially since the underlying EU directive only prohibits the exclusion of liability in the The scope of the sale of consumer goods, but does not regulate its permissibility in normal cases).para. 1 BGB bans in the case of
A per se permissible exclusion of the claim for damages in the context of a consumer goods purchase can, however - if it was undertaken within the framework of general terms and conditions - for new sales items according to No. 8 lit. b BGB be ineffective; there is a further limit according to BGB in the event that the seller intentionally withholding a defect or has assumed a so-called quality guarantee. These last-mentioned regulations also apply within their scope outside of the sale of consumer goods and with regard to all warranty claims of the buyer.
Even if the requirements of Federal Court of Justice reads: "If a certain quality of the purchased item and a blanket exclusion of liability for material defects are agreed in a sales contract, this is usually to be interpreted as meaning that the exclusion of liability is not for the lack of the agreed quality ( (1) sentence 1 BGB ), but should only apply to defects that consist in the fact that the item is not suitable for the use required by the contract ( (1) sentence 2 no. 1 BGB) or is not suitable for normal use and does not have a quality that is customary for items of the same type and which the buyer can expect according to the type of item ( (1) sentence 2 no.BGB are not met, it may happen that an agreed disclaimer is not to be understood in an unrestricted sense. In this respect, not only the wording of the exclusion clause, but the entire text of the contract is decisive. A guiding principle of the
A general terms and conditions clause such as "... sold to the exclusion of any warranty ..." is void, unless the facts mentioned in § 309 BGB are expressly excluded. Because "a comprehensive exemption in general terms and conditions, according to which the liability of the user of the clause also for bodily harm and health damage (§ 309 No. 7 letter a BGB) as well as for other damage also in the case of gross negligence (§ 309 No. 7 letter b BGB ) is excluded, is ineffective due to unreasonable disadvantage of the contractual partner of the user " .
Compensation for use when replacing a product
According to a judgment of the Court of Justice of the European Communities ( ECJ ) of April 17, 2008, such compensation for use is in the event that the regulation allows a “seller, if he has delivered goods that are in breach of contract, to be compensated by the consumer for using the goods that are in breach of contract To demand consumable goods until they are replaced by a new consumer good ”is not compatible with EC Directive 1999/44 / EC. That judgment, following the sale of consumer goods even after the Federal Court to the subsequent delivery no compensation be paid for the use of defective goods.
Statute of limitations
According to limitation period for warranty claims since January 1, 2002 is usually two years, starting with the delivery of the purchased item. This can be fundamentally changed by contract, completely excluded or extended to up to 30 years. The only exception applies to the sale of consumer goods ( German Civil Code), where a shortening is only possible for used purchased goods and there a maximum of one year ( Paragraph 2 of the German Civil Code). A shortening of the limitation periods and the exclusion of claims for defects (e.g. for wearing parts ) in the case of new goods, however, are not possible in the case of a purchase of consumer goods before the defect is reported to the entrepreneur. However, the reverse conclusion from (2) of the German Civil Code (BGB) means that a shortening of the limitation periods or the exclusion of the claims referred to in is possible after notification to the entrepreneur, but this requires a new agreement between the buyer and the entrepreneur.Paragraph 1, No. 3 of the German Civil Code (BGB), the
In the case of non-traders, a greater shortening or an exclusion of liability can only be agreed in individual contracts for new items, but not through general terms and conditions .
Defect (work contract law)
Under contract law , in the event of a request for supplementary performance by the purchaser ('customer'), the contractor has the right to choose: The contractor can decide whether to remedy the defect or create a new work (cf. Paragraph 1 BGB).
If a blockage occurs again 14 days after the removal of a blockage in an underground sewer line, it can be assumed that the removal has not been carried out without any defects, since a sustainable, long-term removal of the deposits is owed. The request to remove the new blockage is therefore not a second work contract to be paid for by the client, but a complaint about defects, as long as the contractor does not prove that the new blockage was caused by improper use.
There is a 24-month warranty for medical-technical services (e.g. implant crowns or prosthetic work). However, the claims are to be made to the treating dentist who instructs the dental technician ( work contract ). During this period, the legislature has also given the option of “subsequent improvement”. If the basis of trust of all parties (patient, dentist, dental technician) is destroyed, this path does not have to be taken by either side.
Austrian warranty law
Warranty is regulated in §§ 922 ff. ABGB . In terms of content, the warranty law in the EU has been standardized by EU Directive 1999/44 / EC and has also been implemented in Austria since January 1, 2002 . In contrast to German law, with the reform of the HGB to the Corporate Code (UGB) on January 1, 2007, in Austria, like most performance disruptions , the guarantee is centrally regulated and generally regulated in the ABGB. In the case of a consumer transaction, warranty claims cannot be excluded or limited: Before knowledge of the defect, the warranty standards are therefore mandatory.
Warranty regulates the liability of the debtor, independent of fault, for deficiency of the service provided and thus serves to compensate for the subjective equivalence - i.e. the fact that the transferor and the acceptor have expressed their willingness to conclude the contract that the respective service is in exchange for them the respective consideration is worth the agreed upon. As an example: A transferee is willing to buy a plasma television for EUR 1000, and a transferor is willing to sell the plasma television for this price.
The statutory warranty obligation in Austria is two years for movable items, three years for immovable items and six weeks for cattle. The warranty period begins with the complete delivery of the service.
The Supreme Court interprets contractual exclusions of liability (warranty restrictions) very restrictively.
A defect is understood as a deviation of the service provided from what is contractually owed. Any deviation from the contractually owed quality or quantity represents a defect. ABGB speaks of "conditional or usually assumed properties". A distinction can be made between legal deficiency and material deficiency, whereby the law does not use the term material deficiency and is therefore only represented by part of the teaching. A material defect is a defect that is physically attached to the thing. A legal deficiency is a deficiency in the legal position that the seller has to provide for the buyer under the contract.
If the defect occurs within six months of delivery, it is generally assumed that the defect was already present at the time of delivery. After six months, the buyer or the contractor must prove that the defect was already present at the time of handover, at least in terms of reason.
The primary warranty remedies
The Austrian warranty law is a two-tier system. First, the poorly performing handover should be given the opportunity to perform in accordance with the contract and to establish equivalence through improvement and exchange.
Improvement and sharing
The item will only be exchanged for debts of the generic type . The improvement or replacement must be carried out within a reasonable period of time with the least possible inconvenience for the transferee, the costs being borne by the transferor. The "supplement of the missing" is also counted among the primary warranty remedies if the defect is a quantity defect. The transferee has the right to choose between these claims .
The secondary warranty remedies
If the primary warranty remedies are impossible or impractical for the transferor, the secondary warranty remedies are the price reduction and the conversion of the contract. These aids are design rights and not claims. Impairment means that improvement or replacement can only be carried out with a disproportionately high amount of effort (details in (4) ABGB).
Price reduction means that the price of the thing is now adjusted to the value of the thing. The price was paid for an item free of defects, but a defective item was provided. Consequently, the now reduced price corresponds to the value of the defective item. (see also: pricing )
The price reduction is carried out using the so-called "relative calculation method", whereby the ratio of the "value of the defect-free item" to the "value of the defective item" is applied to the purchase price paid. (W: w = P: p)
Change means that the contract is canceled. The title does not expire retrospectively (i.e. at the time of the previous conclusion of the contract), but from the time of conversion ( ex nunc effect ), so that the transferor only has rights to enrichment claims . You can only convert if the defects are not minor. In other words, the transferee can only reduce the price if the defect is only minor.
- Wolfgang Fikentscher , Andreas Heinemann : Law of Obligations: General and Special Part . 11th edition, Berlin (inter alia), De Gruyter, 2017. ISBN 978-3-11-036436-1 .
- Florian Gothe : Seller obligations and warranty when buying receivables . (Dissertation, Philipps University Marburg, 2016). Berlin, Duncker & Humblot, . ISBN 978-3-428-55158-3 .
- Jan Dirk Harke : The new law on material defects from a legal historical perspective. In: Archives for civilist practice (AcP) , Vol. 205 (2005), pp. 67–92 (Germany).
- Michael Selk: Rent defects and rights of defects: rent reduction, damages, advance payment, termination . Handkommentar, Baden-Baden, Nomos, 2018. ISBN 978-3-848-74406-0 .
- consumer goods and guarantees for consumer goods (PDF) ofthe European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of
- Database on EU consumer law , which also contains a collection of judgments on the consumer goods directive in Germany
- Explanations on liability for defects in JuraWiki
- Consumer rights - how do you differentiate between guarantee, warranty and product liability? (eRecht24)
- Declaration of warranty liability and guarantee (criticism)
- BGH judgment of November 29, 2006, Az. VIII ZR 92/06 full text
- BGH judgment of February 4, 2015, Az. VIII ZR 26/14 full text
- Court of Justice of the European Communities, judgment of April 17, 2008, case C-404/06 - Quelle AG v. Federal Association of Consumer Organizations and Consumer Associations eV Full text on the website of the Court of Justice and ruling (OJ C. 142 of June 7, 2008, P. 6) as pdf in the Official Journal of the European Union (PDF)
- Federal Court of Justice, judgment of the VIII Civil Senate of November 26, 2008 - VIII ZR 200/05; quoted in the Federal Court of Justice, press office communication No. 217/2008 of November 26, 2008
- Judgment of the AG Lübeck of January 9, 2019 - 23 C 2116/19; Monthly for German Law 9/2019, p. 542
- K. Müller: Strategic considerations on the liability problem ZMK (19) 10/03
- Walter Brugger : End of the disclaimer? (PDF; 186 kB) at www.profbrugger.at, requested on October 23, 2009
- Gschnitzer / Klang / Höller: Commentary on the General Civil Code . 2nd Edition. tape IV , no. 1 . Staatsdruckerei Wien, Vienna 1978, p. 538 f .