Warranty guarantee

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With the performance guarantee (or warranty commitment ; English warranty bond , French garantie de défaut ) takes over the issuing surety or guarantee the liability for warranty obligations of the seller or manufacturer of factual or legal defects of the purchased goods within the warranty period of a contract , for example, a purchase agreement or works contract .

General

In the case of a sales contract, for example, the seller has to deliver the purchased item free of material ( § 434 BGB ) and legal defects ( § 435 BGB). If there are no defects, the seller is released from his warranty obligation. There is then no warranty risk for the buyer. However, if defects occur during the warranty period, the warranty risk consists of the risk that the seller - for whatever reason - may partially or not at all (due to his bankruptcy ) be able to fulfill his warranty obligation. Work contracts such as a construction contract are also subject to the manufacturer / seller's liability for defects. He is obliged to hand over the structure free of material defects upon acceptance. In a tree Angel , it may happen that the manufacturer wants to defect does not eliminate or complaint has become insolvent and therefore can not eliminate it.

This warranty risk can be covered by third parties (e.g. credit institutes , insurers ) in the form of a warranty bond. The creditworthiness of the credit institute / insurer should give the buyer the opportunity to fall back on them if the seller cannot fulfill his warranty obligations.

Legal issues

The warranty / guarantee guarantee is intended to meet the buyer's claims under Section 437 BGB ( supplementary performance from Section 439 BGB, Section 634 No. 1 BGB and Section 635 BGB, withdrawal in accordance with Section 440 BGB, Section 323 BGB and Section 326 (5) BGB, reduction according to § 441 BGB, damages according to § § 440 BGB, § 280 BGB, § 281 BGB, § 283 BGB and § 311a BGB or reimbursement of expenses according to § 284 BGB, § 634 No. 2 BGB or § 637 BGB). Warranty obligations apply primarily to the contractor in the case of contracts for work and services ( Section 634 BGB), namely subsequent performance ( Section 635 BGB), remedial action ( Section 637 BGB), withdrawal ( Section 636 BGB), reduction in price ( Section 638 BGB) or compensation for damages.

In the case of construction contracts with public clients in Germany, the provisions of the German Civil Code (BGB) work contract law are supplemented and partially modified by the General Terms and Conditions for the Execution of Construction Services (VOB / B). This serves in particular to compensate for the lack of specific regulations for building contract law in German civil law and is often used as a basis for warranty guarantees (called here "securing claims for defects"). According to this, § 13 No. 1 VOB / B in accordance with § 633 Paragraph 1 and 2 BGB regulates when the contractor's performance is free from construction defects . In addition, it is stipulated here that the performance corresponds to the recognized rules of technology and that it must be free of defects at the time of acceptance .

The warranty bond / guarantee is a sub-form of the surety or guarantee . The guarantee is regulated in Section 765 ff. BGB, which applies to the guarantee bond. The guarantee replaces the surety in international credit transactions , but is not regulated in the BGB. The BGB provisions on the guarantee cannot be applied analogously to the guarantee; rather, the law of obligations applies analogously . The warranty bond / guarantee is to be classified as a performance bond / performance guarantee . If the construction contract is based on VOB / B, only the rights of the client from § 13 VOB / B are secured, but not those from § 4 No. 7 VOB / B. This deals with the defects identified as defective or contrary to the contract during construction, which the contractor must remedy prior to acceptance. In the case of a contract for work and services based solely on the German Civil Code (BGB), on the other hand, the guarantee also secures claims for defects for defects that were admissibly reported before acceptance. A clause according to which a security deposit of 5% of the final invoice amount can only be redeemed against the provision of a guarantee at the first request is ineffective . In contrast, a clause is effective, according to which the security deposit can be replaced by an absolute, unlimited guarantee. The surety's waiver of objection agreed in the form of a VOB contract is also invalid. The possibility of a guarantee bond is provided in § 17 No. 2 VOB / B , according to which the objection of the advance claim must be waived in the guarantee , the guarantee must be open-ended and must not be issued "on first request".

Credit institutions issue warranty bonds as part of the guarantee credit , insurance companies as part of the surety insurance . The guarantee credit is banking within the meaning of Section 1 (1) No. 8 KWG , while the deposit insurance is insurance for the account of a third party in accordance with Section 43 VVG . According to the legal definition of Section 43 (1) VVG, the policyholder can conclude an insurance contract in his own name for someone else. The “other” is the beneficiary from the surety / guarantee, to whom the rights from the insurance contract are entitled ( Section 44 (1) VVG) but are overlaid by the legal relationship from the guarantee / surety.

The amount of the guarantee is based on the security deposit, which is usually 5% of the order amount. Such a retention may only be agreed if the manufacturer is given the opportunity to redeem the retention by providing a guarantee.

Economic purpose

There are two options for the client to protect themselves against the cost risk - which is to be borne by the contractor - of occurring material defects. Either a cash withholding (usually as a deduction of 5% of the invoice amount) is agreed or a guarantee is provided by a bank or an insurance company as surety, which must pay in the event of the contractor's insolvency. In the latter case, the client has an interest in ensuring that his warranty claims in the event of the contractor's insolvency are borne by a third party through contingent liability . In theory, anyone can be considered as surety or guarantor, but the general terms and conditions of the client regularly stipulate that credit institutions must be liable as part of a guarantee credit or insurance companies as part of the deposit insurance.

running time

Warranty guarantees can be issued for an indefinite period of time, but because of their accessory nature , their actual term is generally based on the limitation period for material defects. The period begins after acceptance / acceptance of the service ( § 13 VOB / B). If no limitation period has been agreed in the contract for claims for defects, it is 4 years for buildings, 2 years for other works whose success consists in the production, maintenance or modification of an object, and 2 years for the parts of combustion systems that are in contact with fire (Section 13 No. 4 para. 1 sentence 1 VOB / B). These deadlines differ from Section 634a of the German Civil Code (BGB), but the limitation period for buildings is no longer as much shorter than in the earlier versions of the VOB / B (2 years) compared to the Civil Code (5 years there).

During this limitation period, a defect must be discovered and reported to the contractor in writing. Then, according to § 13 No. 5 Paragraph 1 Clause 1 VOB / B, the contractor is obliged to remedy all defects occurring during the limitation period that are attributable to performance contrary to the contract at his own expense. The timely written complaint prevents the statute of limitations from occurring and sets a new statute of limitations of 2 years in motion (§ 13 No. 5 Paragraph 1 Clause 2 and 3 VOB / B).

Legal consequences

The guarantee case / surety case occurs in the case of a guarantee / warranty guarantee, if the seller / manufacturer / contractor from the guaranteed / guaranteed contract does not or not completely fulfill the warranty obligation owed by him . The surety / guarantor must then ensure that the financial means are available to cover the obligation to rework. This situation can only arise if there are defects, the contractor has not fulfilled his obligation to repair and the client is entitled to payment of the costs for the removal of defects. The client may only request the amount of the guarantee if the main secured liability exists and the collateral event agreed or assumed by the contracting parties has occurred. Then the client only has to assert what was the payment condition for the guarantee (so-called formal guarantee case ). In addition, the client - except in the case of a "guarantee / guarantee on first request" - must prove the conclusiveness of the main claim (so-called material guarantee case ). He has to prove that the guarantee claim secured by the guarantee is due. If the prerequisites are met, the client may claim the credit institute or the insurance company from the guarantee bond / guarantee for cash payment. Then the bank or the insurance company from the surety / guarantee is obliged to make payment . With the payment of the guarantee in accordance with § 774 Paragraph 1 BGB, the claim of the buyer / client against the debtor is transferred to the surety by virtue of law ( legal session ); the guarantee is based on a claim for reimbursement of expenses from § 670 BGB.

International

In international credit transactions , in particular, there are a large number of guarantees that serve to secure mutual obligations from a contract. The guarantee bond is known to some extent in international credit transactions, but the guarantee guarantee is usually preferred. It is linked to the statutory warranty obligations.

In Austria , the rights from the warranty are regulated in § 932 ABGB , according to which the transferee may improve (rework or additions to the missing), replace the item, an appropriate reduction in payment (price reduction) or cancel the contract ( change in price) due to a defect ) can demand. According to § 933a ABGB the transferee can also claim damages.

The Switzerland sees in Art. 197 OR ago that the seller to the buyer for both the assured properties and for liability that the matter was not physical or legal defects that cancel their value or suitability for the intended use or significantly reduce. He is also liable if he was not aware of the defects. There are special regulations in the cattle trade ( Art. 198 OR, Art. 202 OR). According to Art. 205 OR, the buyer has the choice of canceling the purchase with the action for conversion or of claiming compensation for the reduced value of the item with the action for price reduction.

In France , the warranty obligation arises from Art. 1641 CC : “The debtor is obliged to guarantee for hidden defects in the purchased item that make it unsuitable for its intended use or reduce its usability to such an extent that the buyer does not, or only at a lower price , would have bought if he had known the defects ”.

literature

  • Wolfgang Heiermann / Lutz Mansfeld / Richard Riedl / Andrea Maria Kullack / Johann Kuffer / Martin Rusam: hand commentary on VOB. Parts A and B. Procurement and contract regulations for construction services with legal protection in procurement procedures. 11th completely revised and updated edition. Vieweg + Teubner, Wiesbaden 2008, ISBN 978-3-528-21715-0 , pp. 1391 ff. ( To be found virtually at “Google Book Search” ).

Individual evidence

  1. ^ Karl Heinz Güntzer / Peter Hammacher, Handbook of Order Processing , 2007, p. 240
  2. ↑ BGH BauR 1998, 332 , 334
  3. ↑ BGH, judgment of June 16, 2009, Az .: XI ZR 145/08
  4. ↑ BGHZ 181, 278 , Rn. 13 f.
  5. ↑ BGHZ 136, 27
  6. ↑ BGH NJW 1984, 2456 , 2457
  7. ↑ BGH NJW 1997, 1435
  8. ↑ Friedrich Graf von Westphalen / Brigitta Zöchling-Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113
  9. ^ Andreas Schlüter, Management and Consulting Contracts , 1987, p. 180