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In the law of obligations, a defect is understood as the deviation of the actual from the agreed quality, which can be expressed in a material or legal defect .

General

The defect occurs in several types of contract, in particular in the case of sales contracts , tenancy law and work contract law . The contractually owed service has a defect if its actual quality deviates from the quality that the object should have. If a service is defective, their stand creditors different warranty rights open.

Sales law

The sales law distinguishes between property ( § 434 BGB) and defects ( § 435 BGB). The standards have been in effect since January 1, 2002. They are based on the European Consumer Goods Purchase Directive of 1999, which was a major reason for the modernization of the law of obligations in Germany. This guideline served the EU-wide harmonization of the sales law for contracts that were concluded between entrepreneurs and consumers . In Art. 2 Paragraph 1, it describes how a purchased item must be designed so that it is considered a contractual service. The German legislator implemented this requirement in §§ 434, 435 BGB. In doing so, he went beyond the scope of the directive by regulating the definition of a defect not only for the sale of consumer goods, but also for all sales contracts.

Material defect (§ 434 BGB)

(1) The item is free from material defects if it has the agreed quality upon transfer of risk. Unless the quality has been agreed, the item is free from material defects,

1. if it is suitable for the use stipulated in the contract, otherwise
2. if it is suitable for normal use and has a quality that is normal for items of the same type and which the buyer can expect depending on the type of item.

The quality according to sentence 2 No. 2 also includes properties that the buyer according to the public statements of the seller, the manufacturer (Section 4 Paragraphs 1 and 2 of the Product Liability Act) or his assistants, especially in advertising or when labeling certain properties of the thing, unless the seller did not know the statement and did not need to know, that it had been corrected in an equivalent manner at the time of the conclusion of the contract or that it was unable to influence the purchase decision.

(2) A material defect is also given if the agreed assembly was carried out improperly by the seller or his vicarious agent. A material defect is also present in an item intended for assembly if the assembly instructions are inadequate, unless the item has been assembled correctly.

(3) It is equivalent to a material defect if the seller delivers another item or an insufficient amount.

Defects in quality (Section 434 (1) BGB)

A material defect exists if the purchased item does not have the quality that the parties want it to have. The quality of a thing includes all properties that are important for the use of the thing. On the one hand, this includes properties that are directly related to the thing, such as shape and weight. The quality also includes factors that have an external effect on the thing, such as environmental influences and rental income that can be generated with the thing. The suspicion of a material defect represents a defect if it affects the usability of the item. This applies, for example, to the suspicion that a fish is infected with salmonella.

The target quality is determined in accordance with Section 434 (1) BGB using three levels:

Section 434 (1) sentence 1 BGB

It primarily judges itself according to the quality agreed by the contracting parties. If there is such an agreement, the purchased item has a material defect if it deviates from the agreed quality.

A party agreement requires that the buyer and seller exchange corresponding declarations of intent . This can be done either expressly or through conclusive action. Whether or not this is the case depends on the interpretation of the parties' actions. According to § 133 , § 157 BGB, this is done by interpreting the will of the party with regard to the objective recipient horizon. A quality agreement therefore presupposes that the seller wants to legally vouch to the buyer for the existence of the guaranteed quality. This applies, for example, if the seller expressly guarantees that the purchased item has a certain property. On the other hand, there is usually no declaration of intent by the seller if the seller only recognizes that the buyer is assuming a certain quality of the purchased item. There is also no declaration of intent on the part of the seller if he only provides his own knowledge. Such a notification of knowledge is often present when the seller refers to a source of information that is recognizable for the buyer, for example by saying "Accidental damage according to previous owner no". The quality guarantee does not constitute an agreement on quality . Such a guarantee exists if the seller assures that he is liable for damages regardless of fault for the lack of a certain quality of the item .

Whether the quality agreement has to be made in a certain form depends on whether the associated sales contract requires one. In principle, a quality agreement can be made informally. The situation is different, for example, when buying a property. According to § 311b Paragraph 1 Clause 1 of the German Civil Code (BGB), this requires notarial certification , so that agreements on the nature of a property also require this form.

Section 434 (1) sentence 2 number 1 BGB

If the parties have not made a quality agreement, the existence of a defect is assessed according to whether the item is suitable for the purpose that the buyer and seller assume. This comes into consideration if the buyer and seller agree on a specific purpose of the item, i.e. exchange corresponding declarations of intent. This can be done explicitly or implicitly.

Any kind of use of an item can be considered as intended use. For example, when it comes to car spare parts, the parties regularly agree that these are suitable for cars. Section 434 (1) sentence 2 number 1 BGB has only a small area of ​​application, as a common prerequisite for a purpose often represents the level of agreement on the nature of a thing, so that a defect already exists according to Section 434 (1) sentence 1 BGB, provided that both sides intended quality is not present. Section 434 (1), sentence 2, number 1 of the German Civil Code (BGB) is important if the buyer fails to prove the existence of a quality agreement in a legal dispute .

Section 434 (1) sentence 2 number 2 BGB
This toilet paper has a manufacturing defect, but it may still be suitable for ordinary use.

If the contract does not presuppose a purpose, the existence of a defect is assessed according to the expectations that the buyer was reasonably allowed to have. According to this, the item is defective if it is not suitable for its normal use or if it does not have the properties that are usual for comparable items.

According to § 434 Paragraph 1 Clause 3 BGB, the buyer may in particular expect properties that the seller or manufacturer have publicly mentioned, for example in the context of advertising . This is suitable for establishing trust worthy of protection on the part of the buyer as long as it does not contain any obviously exaggerated statements. However, advertising statements by the manufacturer do not constitute a material defect and therefore no liability on the part of the seller if the seller can prove that he was neither familiar with nor negligently ignorant of the statement. This option protects private sellers in particular, who regularly cannot be expected to follow the manufacturer's advertising claims.

Statements that were corrected at the time the contract was concluded also do not lead to the existence of a defect. This destroys the confidence of the buyer that he is allowed to have in the original statement. However, this only applies if the correction has a broad impact comparable to that of the statement to be corrected. In particular, it must identify the incorrect statement and point out its mistake. Ultimately, statements that could not influence the purchase decision are disregarded. The seller bears the burden of proof for both reasons for exclusion.

Faulty assembly (Section 434 (2) BGB)

A material defect can also result from the fact that an item, the components of which have their respective target properties, is not properly assembled by the seller. Assembly is when the item is not ready for use immediately after delivery, but has to be made usable first. An assembly is, for example, when assembling a piece of furniture or installing software . If the assembly is incorrect, for example if the purchased piece of furniture is erected at an angle, this is considered defective.

In order for Section 434 (2) of the German Civil Code to apply, the contract must be a purchase. This is the case when the assembly, which is a work performance, is only a minor part of the contract between buyer and seller. If, on the other hand, assembly is a focus of the contractual performance, the warranty is subject to the law on work contracts.

A material defect can also be justified by the fact that the assembly instructions for an item intended for assembly are incorrect. This applies if, under normal circumstances, it is not to be expected that it will lead to proper assembly for an average, gifted buyer from the group of people regularly affected by the purchase. If the buyer damages the item during assembly as a result of the error in the instructions, it is defective. This regulation is called the IKEA clause in law. Your decisive statement, however, is not that incorrect instructions can lead to a material defect, because the incorrect manual already represents a material defect. Rather, it is more important that the purchased item, which is accompanied by incorrect assembly instructions, is only defective if the item is put together incorrectly. It is controversial in jurisprudence whether incorrect operating instructions are equivalent to incorrect assembly instructions. Proponents argue that the interests of both types of guidance are the same.

Incorrect and defective delivery (§ 434 Paragraph 3 BGB)

The delivery of an alud , i.e. a wrong delivery , is conceptually equated with a material defect.

Whether it is a wrong delivery depends on whether it is a piece or a generic purchase . In the case of piece purchases, the goods owed are determined by their identity. If the seller delivers goods other than those for which they are due, there is a material defect.

The delivery of a too small quantity ( deficiency in the defective delivery ) is in accordance with § 434 Paragraph 3 Alt. 2 BGB also equal to the material defect. If subsequent performance is not possible in the event of a defective delivery because there are no longer enough goods available, only a subsequent delivery of completely new goods is possible. Not covered by § 434 Paragraph 3 Alt. 2 BGB is the over-delivery. It does not give rise to any purchase law claims for the buyer.

Transfer of risk

In order for the existence of a defect to justify claims by the buyer, the defect must be present at the time of the transfer of risk .

The distinction between open and hidden defects with regard to the obligation to complain only applies to mutual commercial purchases according to 377 HGB a role.

species

A distinction is made between open material defects, hidden defects and fraudulently concealed defects. An obvious defect must already be present when the item is handed over / accepted and must be recognizable for everyone. If a defect is present, but not recognizable at the time of handover or acceptance, it is referred to as a hidden defect. The hidden defect must be reported immediately after its discovery. Immediate within the meaning of Section 377 (1) of the German Commercial Code (HGB), the investigation or complaint is only possible if it is carried out without culpable delay ( Section 121 BGB). In the case of fraudulently concealed defects are hidden defects that are known to the seller or contractor at the time of handover or acceptance, but which he deliberately withholds in order to gain an advantage (example: a car is sold as accident-free even though it already has one Damage to the chassis and this was known to the seller). Hidden defects become statute-barred after two years ( § 438 Paragraph 1 BGB), fraudulently concealed defects after three years ( § 195 , § 438 Paragraph 3 BGB).

Defect of title (§ 435 BGB)

One of the typical contractual obligations of the seller is to provide the buyer with ownership of the purchased item ( Section 433 (1) sentence 1 BGB). The item must be free of legal defects ( Section 433 (1) sentence 2 BGB).

A legal deficiency always exists when a third party affects the property, possession or use of the object of sale on the basis of private or public law and the buyer cannot therefore “deal with the object at will and exclude others from any influence” ( § 903 BGB).

It is equivalent to a legal deficiency if a right is entered in the land register that does not actually exist ( Section 435 sentence 2 BGB). In favor of the registered third party, it is assumed that he is actually entitled to the right ( Section 891 (1) BGB), which, for example, affects the saleability and lendability of an apparently already encumbered property.

Private rights

Private rights include all rights in rem. This includes easements , usufruct , real encumbrances , real rights of first refusal , real estate liens and other liens , real rights of use and rights of joint use of land. This also includes patents , utility models and designs as well as trademark rights and other intellectual property rights that prevent the buyer from using the purchased item.

Mandatory rights can also constitute a legal deficiency. Mandatory rights are contractually agreed rights that entitle the owner to own the thing, e.g. B. the tenant's right of possession ( Section 535 (1) BGB).

Public rights

Public rights can constitute a legal defect if they restrict usability. One example is the existing social connection of an apartment according to the Housing Binding Act , which restricts both own and third-party use.

Legal consequences

The legal consequences of material and legal defects do not differ and are mentioned in § 437 BGB:

Tenancy law

The modernization of the law of obligations brought an editorial change to the regulations on rent reduction in the event of material and legal defects on January 1, 2002. In Section 536 of the old version of the German Civil Code, an “error” in the rental property was assumed. Section 536 of the new version of the German Civil Code speaks of a “defect”. A new conceptual understanding of the content is not connected with this.

The defect must significantly reduce or eliminate the suitability of the rental property for use in accordance with the contract. This means that the definition of a defect under tenancy law is narrower than in the law on contracts for work and services, which no longer recognizes such a restriction. The feature of the cancellation or reduction of the value or the suitability of the work for the contractually required use in § 633 BGB old version has been abandoned.

Travel law

In Reiserecht the trip deficiency is a deficiency, in which one in a travel or transport contract promised travel services either not, incomplete or different from the contractual terms of reference was provided. The central provision is Section 651i (2) BGB, according to which (in reverse to the provision) there is a travel deficiency if the package tour does not have the agreed quality or if the tour operator does not provide travel services ( non-performance ) or with an unreasonable delay .

Contract law

The definition of material defects in the law on contracts for work and services in Section 633 (2) BGB corresponds to that of the sales law in Section 434 (1) BGB. An analogous application of § 434 paragraph 1 sentence 3 BGB in the law on contracts for work and services is excluded due to the lack of a plan violation. In the area of ​​application of the procurement and contract regulations for construction services (VOB), the service is free of material defects if it has the agreed quality at the time of acceptance and corresponds to the recognized rules of technology ( Section 13 (1) sentence 2 VOB / B).

International

According to Swiss law, a material defect is present if the delivered item does not have the properties that could be expected from the buyer in good faith , i.e. if there is an unfavorable deviation from the target quality. or in the event of a deviation from the guaranteed properties ( Art. 197 OR ), which need not be significant. The seller's declaration of the existence of properties or the absence of defects is considered an assurance. This assurance can be given either expressly or implicitly. The legal declaration of the seller's assurance must have been causal for the buyer's decision to purchase and this must have been recognizable by the seller. Any declaration by the seller that can be understood by the buyer as an assurance of objectively identifiable properties is considered an assurance, which is why a promotion for advertising purposes does not count as an assurance.

In Austria , anyone who surrenders a thing to someone else for a fee guarantees, in accordance with Section 922 (1) ABGB , that it corresponds to the contract. He is therefore liable for the fact that the thing has the required or usually required properties, that it corresponds to his description, a sample or a pattern and that it can be used in accordance with the nature of the business or the agreement made. Whether the item complies with the contract is also to be assessed according to what the buyer can expect on the basis of the public statements made about it by the seller or the manufacturer, especially in the advertising and in the information attached to the item; this also applies to public statements made by a person who introduced the item into the European Economic Area or who identifies himself as the manufacturer by affixing his or her name , brand or other identifier to the item. However, such public statements do not bind the seller if he neither knew nor could have known them, if they were corrected when the contract was concluded or if they could not have influenced the conclusion of the contract. In accordance with Section 924 of the Austrian Civil Code (ABGB), the seller warrants any defects that were present upon delivery. According to Section 932 (1) of the Austrian Civil Code, the buyer can demand improvement (rectification or non-fulfillment of the missing item), replacement of the item, an appropriate reduction in payment (price reduction) or the cancellation of the contract (conversion) due to a defect. If the seller is responsible for the defect, the buyer can also claim damages ( Section 933a, Paragraph 1 of the Austrian Civil Code).

In the UN sales law , the seller has to deliver goods in accordance with Art. 35 Paragraph 1 CISG that meet the requirements of the contract in terms of quantity, quality and type as well as packaging. While the buyer can not assert any warranty claims under German law in the event of a non-contractual quantity of the delivery of goods , the UN sales law deals with the quantity of a delivery when determining whether the goods are in conformity with the contract. The buyer can make a replacement delivery (Art. 46 Paragraph 2 CISG), rectification (Art. 46 Paragraph 3 CISG), cancellation of the contract (Art. 49 CISG), reduction of the purchase price (Art. 50 CISG) and compensation for non-performance (Art . 45 lb CISG).

See also

literature

  • Kurt Schellhammer: The new sales law - the buyer's rights of material defects , MDR 2002, 301 ff.
  • Kurt Schellhammer: The new sales law - liability for defects of title, legal purchase and sale of consumer goods , MDR 2002, 485 ff.
  • Ulrich Büdenbender: § 434 . In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  • Harm Peter Westermann: § 434 . In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .

Web links

Wiktionary: Deficiency  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Ulrich Büdenbender: § 434 , Rn. 1-2. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  2. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations II: Special Part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 6 Rn. 2.
  3. ^ BGH, October 5, 2001, V ZR 295/00 = Neue Juristische Wochenschrift Jurisdiction Report 2002, p. 522.
  4. ↑ BGHZ 52, 51 .
  5. ↑ Ulrich Büdenbender: § 434 , Rn. 17. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  6. ↑ BGH, judgment of March 12, 2008, VIII ZR 253/05 = Neue Juristische Wochenschrift 2008, p. 1517.
  7. ↑ Ulrich Büdenbender: § 434 , Rn. 19. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  8. ↑ Ulrich Büdenbender: § 434 , Rn. 21. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  9. ^ Harm Peter Westermann: § 434 , Rn. 19. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  10. ↑ Ulrich Büdenbender: § 434 , Rn. 22. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  11. ^ Harm Peter Westermann: § 434 , Rn. 18. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  12. ↑ Ulrich Büdenbender: § 434 , Rn. 23. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  13. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations II: Special Part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 6 Rn. 19-22.
  14. ↑ a b Ingo Saenger: § 434 , Rn. 18. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (eds.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
  15. ^ Harm Peter Westermann: § 434 , Rn. 37. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  16. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations II: Special Part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 6 Rn. 23.
  17. ↑ Stefan Greiner: Law of Obligations Special Part: contractual obligations . 2nd Edition. Springer, Berlin 2019, ISBN 978-3-662-57790-5 , § 2 Rn. 65.
  18. ↑ Maximilian Haedicke: The seller's obligation to correct defects in the event of incorrect assembly instructions . In: Journal for the entire law of obligations 2006, p. 55 (56).
  19. ↑ Ulrich Büdenbender: § 434 , Rn. 62. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  20. ^ Harm Peter Westermann: § 434 , Rn. 41. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  21. ↑ Helmut Rüßmann : The Aliud and Manko delivery. Saarbrücken University , 2004
  22. ↑ Helmut Rüßmann : Warranty for legal defects in sales law. Saarbrücken University 2004
  23. ↑ BGH NJW 1979, 949 = LM § 434 BGB No. 5
  24. ↑ BGHZ 67, 134 = NJW 1976, 1888 = LM § 459 BGB No. 41; lastly BGH NJW 2000, 1256
  25. ^ Michael H. Meub: Sales law: Warranty, statute of limitations and guarantees. 2011
  26. ↑ § 536 BGB in the version valid until December 31, 2001
  27. ^ Frank Maciejewski: Law of Obligations Reform (essay). Website of the Berlin tenants' association, July 1, 2002
  28. ↑ Daniela Schlotz, Andreas Reichhardt: lack of the rented and rent reduction , accessed on 28 March 2016
  29. ↑ Heinz G. Schultze: Construction defects = rental defects? - The definition of a defect in tenancy law. ( Memento of the original from March 4, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. November 15, 2007 @1@ 2Template: Webachiv / IABot / www.kanzlei-schultze.de
  30. ↑ Section 633 (1) of the German Civil Code (BGB) in the version valid until December 31, 2001
  31. ↑ [1]
  32. ↑ Michael Meub: Law of Obligations Special Part . 633 ff. ( Meub.de [PDF]).
  33. ↑ BGE, judgment of June 10, 2014, Az .: BGE 4a_173 / 2014, E. 5.2
  34. ↑ Alfred Koller, Swiss Code of Obligations: Special Part , 2012, § 4 N 139
  35. ↑ BGE, judgment of January 18, 2012, Az .: 4a_401 / 2011 E. 3.1
  36. ↑ BGE, judgment of March 2, 1976, Az .: 102 II 97 E. 2a
  37. ↑ BGE, judgment of August 25, 2005, Az .: 4C.119 / 2005 E. 2.3
  38. ↑ BGE, judgment of November 30, 1962, Az .: 88 II 410 E. 3c