Supplementary performance

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Under subsequent performance is understood in the German Schuldrecht that the buyer on the purchase agreement and the customer at the service contract granted warranty law , which bring a claim confers on repair or replacement, the subject of performance at the time of as long as transfer of risk a deficiency has.

The supplementary performance is the primary warranty law of the law of sales and works contracts: Before the buyer or the customer can resort to other rights, such as withdrawal , reduction in price or compensation , he must basically give his contractual partner the opportunity to remedy the defect. This is based on the consideration that contracts have to be fulfilled in principle and should only be handled in a different way in exceptional cases.

The current regulation of claims for defects is based on the law on the modernization of the law of obligations that came into force on January 1st, 2002 . The right to subsequent performance is regulated in sales law in § 437 No. 1, § 439 BGB and in contract law in § 634 No. 1, § 635 BGB.

Supplementary performance in the purchase contract (Section 439 BGB)

History of origin

The purchase law claim for supplementary performance was created within the framework of the Law of Obligations Modernization Act, which came into force on January 1, 2002. The law, which led to a comprehensive reform of the law of obligations, which many felt to be outdated and in need of reform, served in the area of ​​sales law in particular to implement the European Consumer Goods Directive. This directive should harmonize the EU-wide minimum of warranty law for the purchase of a consumer from an entrepreneur. For this purpose, she made specifications on the right to subsequent performance. The German legislature went beyond the European target by regulating the right of subsequent performance in § 439 BGB in the general sales law uniformly for all types of purchases. In doing so, he wanted to subject sales contracts to the same regulations as far as possible.

The European legal character of the German sales law meant that its interpretation was significantly influenced by the case law of the European Court of Justice (ECJ), whose interpretation of Community law is binding for the member states. In 2011, the court made a fundamental decision on the scope of the claim for supplementary performance with its judgment in the Weber and Putz case. This was continued in the following years through interpretation by the German courts.

With effect from January 1, 2018, the first amendment to Section 439 BGB was made, which implemented essential elements of the Weber and Putz decision. According to Art. 229 § 39 of the Introductory Act to the Civil Code , the revised § 439 BGB applies to sales contracts that are concluded from January 1, 2018.

Normalization

Since January 1, 2018, § 439 BGB has the following wording:

(1) As supplementary performance, the buyer can, at his option, request the removal of the defect or the delivery of a defect-free item.

(2) The seller has to bear the expenses necessary for the purpose of supplementary performance, in particular transport, travel, labor and material costs.

(3) If the buyer has built the defective item into another item or attached it to another item in accordance with its type and purpose, the seller is obliged to pay the buyer the necessary expenses for removing the defective item and installing or to replace the attachment of the repaired or delivered defect-free item. Section 442 (1) is to be applied with the proviso that, for the knowledge of the buyer, instead of the conclusion of the contract, the buyer will install or attach the defective item.

(4) The seller can refuse the type of supplementary performance chosen by the buyer, without prejudice to Section 275 (2) and (3), if it is only possible at disproportionate costs. In particular, the value of the item in a defect-free condition, the significance of the defect and the question of whether the other type of supplementary performance could be used without significant disadvantages for the buyer must be taken into account. In this case, the buyer's claim is limited to the other type of supplementary performance; the right of the seller to refuse this under the conditions of sentence 1 remains unaffected.

(5) If the seller delivers a defect-free item for the purpose of supplementary performance, he can request the buyer to return the defective item in accordance with Sections 346 to 348.

The claim for supplementary performance is linked to the seller's obligation under Section 433 (1) sentence 2 of the German Civil Code to hand over a defect-free item to the buyer and to transfer it to the buyer: If the seller delivers a defective item to the buyer, he does not fulfill his obligation. Therefore the right of the buyer to the delivery of a purchase item suitable for performance continues to exist. With this regulatory structure, which has existed since the reform of the law of obligations, the legislature joined the non-fulfillment theory, according to which the seller only fulfills his contractual obligation if he provides the buyer with a defect-free item. The buyer is therefore entitled to reject a defective purchase item.

However, the buyer's claim to delivery of a defect-free item based on Section 433 (1) sentence 2 of the German Civil Code (BGB) expires if the buyer accepts a defective item as fulfillment in accordance with Section 363 of the BGB. In this case, the buyer's warranty rights take the place of the original claim from the sales contract. These rights include several modifications of the regulations of the general law of obligations, which are specially tailored to sales contracts in order to enable appropriate results and to meet the requirements of European law on sales. The primary warranty right of the buyer is the claim for supplementary performance from § 439 Paragraph 1 BGB. This is a modified form of the original performance claim. Its primary role arises from the fact that the other warranty rights - withdrawal , reduction in price and compensation for damages - generally require that the buyer has set the seller a deadline for subsequent performance, which has passed without success. The deadline can be dispensed with, for example, if the seller seriously and finally refuses the supplementary performance, there is a relative firm deal or the supplementary performance fails in accordance with Section 440 of the German Civil Code.

The subsequent performance claim of § 439 BGB applies directly to the purchase of things and, via the reference in § 453 Paragraph 1 BGB, also to the purchase of rights and other items.

Eligibility requirements

The claim for supplementary performance initially requires an effective sales contract.

Furthermore, the seller must have violated his contractual obligation to hand over and transfer ownership of a defect-free purchase item by handing over a defective item. The warranty law distinguishes between material defects and legal defects : According to § 434 Paragraph 1 BGB, a material defect exists if the purchased item does not have the quality that was agreed or assumed or could reasonably be expected by the buyer. The condition includes all circumstances that affect the usability of the object of purchase. This includes properties that are directly attached to the thing as well as external circumstances that make it difficult to use the thing. According to Section 434, Paragraph 2, Sentence 1 of the German Civil Code (BGB), it is also a material defect if the purchased item is incorrectly assembled. If the item is intended for assembly by the buyer, incorrect assembly instructions in accordance with Section 434, Paragraph 2, Sentence 2 of the German Civil Code (BGB) constitute a material defect if the buyer is unable to assemble the purchased item correctly. According to § 434 Paragraph 3 BGB, the delivery of wrong goods or too small a quantity represents a material defect. In contrast, according to § 435 BGB, a third party can assert a right to the purchased item that the buyer can use of the object obstructed.

If the buyer demands supplementary performance even though the object of purchase does not have a defect, he is liable for damages in accordance with § 280 , § 241 Paragraph 2 BGB, provided he negligently fails to recognize that there is no defect.

Content of the claim

The law provides for two forms of subsequent performance, between which the buyer can choose: subsequent improvement and subsequent delivery. In the case of rework, the seller eliminates the defect in the delivered item. In the case of subsequent delivery, the seller gives the buyer a new item suitable for performance. The declaration of the selected form of supplementary performance is a declaration of intent that must be received .

In jurisprudence it is disputed whether the buyer's right to choose is an election debt ( § 262 - § 263 BGB) of the seller or an elective competition between the two rights. This is important for the question of whether the buyer is bound to a choice made with respect to the seller. In the case of an election guilt, the binding follows directly from Section 263 (2) BGB. If, on the other hand, one assumes elective competition, the buyer can only be bound by the requirement of good faith ( § 242 BGB), i.e. only in cases in which the seller clearly relies on the buyer holding onto the chosen alternative .

Subsequent performance options for piece and class debt

Both options for subsequent performance are open to the buyer if the parties have agreed on a generic debt. In this case, the seller owes the procurement of an item that is only determined according to generic characteristics, for example according to type, number and size. Such a debt exists, for example, when buying a new car.

In the case of a piece debt , on the other hand, it is disputed whether the right of subsequent performance can also include the variant of subsequent delivery. A piece debt is characterized by the fact that the purchase contract relates to a specific item, i.e. it is not simply determined according to certain generic features, as is the case with a class debt. Such a debt is typically used in the case of used cars, since the individual condition of the vehicle is decisive for the pricing. In this form of debt, subsequent delivery is opposed by the fact that the parties only consider a certain item to be suitable for performance. Therefore there is no other fulfillment-capable item that could be procured as part of the subsequent delivery. The prevailing view in jurisprudence nevertheless affirms the possibility of demanding subsequent delivery even in the case of piece debts: The seller's obligation includes the delivery of an item comparable to the original debt. Subsequent performance is only excluded in cases in which the condition of the specifically selected item is decisive for both parties. This regularly applies to used cars, for example. This view argues that the legislature wanted to largely abolish the different treatment between generic and individual guilt, which came from the old law of obligations, within the framework of the reform of the law of obligations. His aim was an equal treatment of generic and piece debt in warranty law. Some voices from legal doctrine accuse this view of neglecting the fact that, according to the will of the parties, the seller should only owe the transfer of ownership of a certain thing.

Scope of the variants of the supplementary performance

The scope of the subsequent performance claim is based on the original performance claim. The seller is therefore obliged to create a condition in accordance with the contract.

If the buyer requests repairs, the seller must bring the delivered goods into a condition in accordance with the contract. If, on the other hand, he requests subsequent delivery, the seller must exchange the defective purchase item for a defect-free one.

Replacement of installation and removal costs

With regard to subsequent delivery, it was controversial in jurisprudence for a long period of time whether the seller, in cases in which the purchased item had already been inseparably connected or processed, would merely procure a new item or also the costs of removing the defective one and must bear the installation of the defect-free item. Such a case exists, for example, if defective tiles are installed in a building before the request for supplementary performance is made. In one case in which this question became relevant, the Federal Court of Justice (BGH) assumed that the seller was not obliged to install the installation, as installation was not part of the seller’s original program of duties. However, he affirmed an obligation to expand. On the one hand, the obligation of the seller to take back the defective purchase item at its location makes this necessary. On the other hand, the fact that the legislature wanted to implement the consumer goods sales directive when revising the law of obligations, demand that the state be brought into conformity with the contract. This requires the removal of the condition contrary to the contract by the seller. However, the obligation is limited by the objection of Section 439 (4) BGB, with which the seller can refuse supplementary performance because of a disproportionately high level of effort.

Since the question of the scope of the claim for supplementary performance concerns the interpretation of the Consumer Goods Sale Directive, the BGH referred to the ECJ in a preliminary ruling procedure whether it is against the directive that the seller may refuse supplementary performance because of disproportionate costs. The District Court Schorndorf turned shortly thereafter with the question of whether the seller in consumer sales and installation costs must carry, also to the ECJ. The latter answered both questions in the affirmative in his Weber and Putz decision of 2011: The Consumer Goods Directive requires that the claim for subsequent performance does not entail any significant inconvenience for the buyer. This must therefore be protected in particular from financial burdens. Therefore, when buying consumer goods, costs that arise as part of a supplementary performance through installation or removal are to be borne by the seller. Furthermore, the ECJ decided that the seller may not refuse the chosen form of supplementary performance due to disproportionate costs if the other modality of supplementary performance is not possible; Otherwise there would be the risk that the buyer would lose his claim to subsequent performance, which is not provided for in the directive. The seller may, however, limit the buyer's claim to reimbursement of costs to a reasonable amount if the entire costs were excessive.

Since the interpretation of the ECJ is binding for the member states, the German case law implemented the requirements of the ECJ by interpreting § 439 BGB accordingly. In spite of the placement of § 439 BGB in the general sales law, it distinguished between purchases of consumer goods and other purchases and only extended the program of duties prescribed by the ECJ to the former, thus making a split interpretation.

The legislature reacted to the case law of the European Court of Justice by changing Section 439 of the German Civil Code on January 1, 2018. In Section 439 (3) sentence 1 of the German Civil Code, it established the obligation of the seller for all types of purchase contracts to provide the buyer with the necessary expenses for and to reimburse removal of the defective item.

Reimbursement of expenses

It was also controversial whether the buyer can demand that the seller incurs expenses that the buyer made on the initially delivered item or reimbursement of its value. Such expenses are, for example, when painting a piece of furniture.

Until the decision of the ECJ in the Weber and Putz case, the prevailing view in jurisprudence assumed that such losses can only be asserted as impairments of the buyer's integrity interests under the additional conditions of a claim for damages . As a result of the decision of the European Court of Justice, some legal scholars assume that the expenses incurred by a consumer are to be reimbursed in accordance with Section 439 (1) BGB.

Cost of supplementary performance

According to § 439 Paragraph 2 BGB, the seller bears the costs of the subsequent performance. These include, for example, repair and transport costs. If the buyer incurs expenses for the purpose of supplementary performance, Section 439 (2) BGB gives him the right to reimbursement of these costs according to the prevailing opinion in jurisprudence and teaching. For example, if the buyer instructs an appraiser to locate the defect so that the seller can subsequently remedy it, the buyer can demand reimbursement of the appraiser's costs via Section 439 (2) BGB. According to a contradicting view, the regulation only contains an allocation of costs; The buyer can only base a claim for reimbursement on §§ 437 No. 3, 280 Abs. 1 BGB, which, unlike § 439 BGB, presupposes a fault.

According to Section 309 No. 8 b cc BGB , the obligation to bear the costs can not be waived by general terms and conditions.

Place of supplementary performance

What is disputed in jurisprudence is where the place of performance of the supplementary performance is, i.e. at which place the seller must supplementary performance. The sales law does not contain any specific requirements.

Jurisprudence and prevailing doctrine assume that the place at which the seller has to provide the subsequent performance owed by him is determined according to the general regulation of § 269 Paragraph 1 BGB. According to this, the place of performance is primarily based on the party agreement; in particular, an agreement on the place of performance of the original performance obligation can also constitute an agreement on the place of subsequent performance. If a party agreement does not exist, the place of supplementary performance is assessed according to the respective circumstances of the individual case. These circumstances include in particular the type of service to be performed. The repair of a motor vehicle usually has to be carried out by the seller because of the need for workshop technology and personnel. Also of importance are the location of the purchased item, the way people think about it , trade customs and the extent of the inconvenience that the supplementary performance entails for the buyer. The latter aspect is influenced by the Sale of Goods Directive.

On the other hand, some legal scholars assume that Section 269 of the German Civil Code (BGB) is overlaid by special features of the sales law. According to this, the place of subsequent performance - within the limits of § 242 BGB - is always at the place where the item is located. This view is argued on the basis of the Consumer Sales Directive. On the one hand, the buyer should not bear the risk that his or her justified request for subsequent performance will be ineffective due to the choice of an incorrect subsequent performance location. Finally, a request for supplementary performance is only effective if the buyer is willing to provide the purchased item at the place of supplementary performance. On the other hand, the supplementary performance according to Art. 3 Paragraph 3, 4 must take place without significant inconvenience for the consumer and at the expense of the seller. This view is countered by burdening the seller more than what is required and appropriate under European law.

Another view considers the place of supplementary performance to be the place where the original performance obligation had to be fulfilled in order to determine the place of supplementary performance as precisely as possible. The interests of the buyer, in particular the consumer, are adequately protected by the cost bearing rule of Section 439 (2) BGB.

Exclusion of supplementary performance

The obligation to carry out the type of supplementary performance chosen by the buyer does not apply if it is impossible according to § 275 BGB . According to this, impossibility exists if the debtor cannot provide the service, the supplementary performance requires an effort that is grossly disproportionate to the creditor's interest, or the performance cannot be reasonably expected of the creditor for personal reasons. If both forms of supplementary performance are impossible, the buyer can withdraw from the contract or reduce the purchase price. If the supplementary performance is partially impossible, the predominant opinion is that he must supplementary performance as far as this is possible for him; in the case of such a restriction, one speaks of a repair claim.

Furthermore, the claim for subsequent performance in accordance with Section 323 (6) of the German Civil Code (BGB) is excluded if the buyer is predominantly responsible for the defect.

Finally, Section 439 (4) sentence 1 BGB grants the seller the right to refuse the form of subsequent performance chosen by the buyer if it is associated with disproportionate costs. In particular, disproportionality can result from a high level of supplementary performance that is out of proportion to the buyer's interest in receiving the defect-free service. This is known as absolute disproportionality. The threshold of unreasonableness is lower than with the general right to refuse performance due to economic unreasonableness from § 275 Abs. 2 BGB. With this right to refuse performance, the legislature particularly wanted to protect dealers who do not act commercially or who do not have their own repair options. Disproportionality can also result from the fact that the type of supplementary performance desired by the buyer is associated with a significantly greater effort than the alternative form of supplementary performance. This applies, for example, if the buyer requests a new delivery of an expensive item, even though the defective item could be repaired at relatively low cost. In such cases, jurisprudence speaks of relative disproportionality. If only one form of supplementary performance is possible, the entrepreneur can, in the case of a purchase of consumer goods within the meaning of Section 474 of the German Civil Code, according to Section 475 (4) sentence 1 of the German Civil Code, do not refuse this due to disproportionality. Section 475 (4) sentence 1 BGB came into force on January 1, 2018 in order to implement the case law of the ECJ in the Weber and Putz case.

Restitution obligation

Section 439 (5) of the German Civil Code (BGB) obliges the buyer to return the defective purchase item to the seller in accordance with the right of withdrawal. According to § 346 Paragraph 1, he owes the return transfer of the object and the surrender of drawn uses ( § 100 BGB). According to Section 347 (1) of the German Civil Code (BGB), he still owes the replacement of uses that he could have drawn according to the rules of orderly business.

The obligation to surrender and replace uses is intended to prevent the buyer from gaining an advantage to which he is not entitled by receiving a new one in exchange for a used item. In the area of consumer goods sales, the obligation to surrender and replace uses collides with the European law stipulation that the subsequent performance should be free of inconvenience for the buyer. Therefore, § 475 Abs. 3 S. 1 BGB exempts the buyer in the context of a consumer goods purchase from the obligation to surrender or replace uses. With this regulation, which was subsequently integrated into sales law, the legislature followed the case law of the European Court of Justice, which regarded the obligation to pay compensation as contrary to European law.

Section 347 (2) sentence 1 of the German Civil Code (BGB) grants the buyer a claim against the seller for reimbursement of uses that he has made on the defective purchase item. Only necessary uses, i.e. those that are necessary to maintain the item, are eligible for replacement. This includes, for example, the feed costs for an animal.

Statute of limitations

The limitation of the right to remedy intended as with other warranty rights according to § 438 BGB; This is a practically significant modification compared to the original performance claim from the sales contract, which is subject to the general statute of limitations.

According to § 438 the first 3 BGB. No barred the claim notwithstanding the rule limitation period of § 195 BGB basically already within two years. A limitation period of five years applies to buildings or items that have been used for a building in accordance with their normal use. A limitation period of thirty years finally applies if the purchased item is encumbered with a third party surrender claim against the buyer or with another right entered in the land register.

In accordance with Section 438 (2) BGB, the statute of limitations begins with the handover of the property, otherwise with the delivery of the item.

Supplementary performance in the case of a work contract (§ 635 BGB)

History of origin

Section 635 of the German Civil Code was created by the reform of the law of obligations in 2002. It is the successor to the earlier Section 633 (2) of the German Civil Code (BGB), which granted the purchaser of a work that did not have the agreed quality a right to remedy of defects.

Normalization

(1) If the customer requests supplementary performance, the entrepreneur can choose to either eliminate the defect or produce a new work.

(2) The entrepreneur has to bear the expenses necessary for the purpose of the supplementary performance, in particular transport, travel, labor and material costs.

(3) The entrepreneur can refuse supplementary performance without prejudice to Section 275 (2) and (3) if it is only possible at disproportionate costs.

(4) If the entrepreneur produces a new work, he can demand the return of the defective work from the customer in accordance with §§ 346 to 348.

In the case of a contract for work, supplementary performance is also the primary legal remedy of the customer, who is referred to as the customer in work law. The customer's claim for supplementary performance is regulated in Section 635 of the German Civil Code (BGB). As with the claim from § 439 BGB, it is a modification of the original performance claim that follows from the contract for work.

requirements

The claim for supplementary performance presupposes that the contractor provides the customer with a service that is defective at the time of acceptance ( Section 640 BGB).

Like sales law, contract law differentiates between material and legal defects; The understanding of both types of defects is essentially the same as in the sales law: According to Section 633 (2) sentence 1 of the German Civil Code (BGB), a material defect exists if the actual quality of the work differs from its target quality. A legal deficiency exists if a third party at the plant can assert a right not provided for in the contract for work against the customer.

Content of the claim

As in sales law, the claim for subsequent performance under contract law can be met in two ways: by reworking the delivered work and by producing it from scratch. In contrast to sales law, however, the entrepreneur can choose which form of improvement is to be carried out, as he, as the manufacturer of the work, can typically best assess how he can most economically meet the buyer's demands.

The claim for supplementary performance includes all activities that are necessary to establish a condition in accordance with the contract. This includes eliminating the defect as well as carrying out the necessary preparatory and reworking work.

According to § 635 Abs. 2 BGB the entrepreneur bears the costs of the supplementary performance. The customer can, however, be involved in the costs of the supplementary performance if it provides him with an advantage to which he is not entitled. This is the case, for example, if the work is more valuable than what was originally owed as a result of the subsequent performance. This corresponds to the principle of benefit sharing recognized in the law on damages . Involvement of the customer is also possible with regard to no-business costs . These are costs that the entrepreneur incurs for the purpose of supplementary performance, but to which the customer is not entitled.

The jurisdiction basically regards the place where the work is located in accordance with the contract as the place of supplementary performance. The parties can, however, agree to a different location.

Exclusion of supplementary performance

Section 635 (3) grants the entrepreneur the right to refuse supplementary performance if it is impossible or requires disproportionate costs. This applies if the customer's interest in the fact that the work is free from defects is not proportionate to the effort required for this.

Since the law on contracts for work and services, unlike the sales law, does not protect consumers in any particular way, this right to refuse performance is not restricted if there is a contract between the consumer and the entrepreneur.

Restitution obligation

If the entrepreneur produces a new work, he can demand the old, defective work from the customer in accordance with Section 635, Paragraph 4 of the German Civil Code (BGB), since the customer can only claim one work. The return takes place according to the right of withdrawal. This regulation is based on Section 439 (5) BGB.

Statute of limitations

The statute of limitations for the claim for supplementary performance is based on § 634a of the German Civil Code (BGB) , as is the case with other claims for defects under contract law . According to this, the claim generally expires within the regular limitation period. Claims due to a lack of or in relation to a building become statute-barred within five years. In the case of a work that consists of the production, maintenance or modification of an item or the provision of planning or monitoring services for this, the limitation period is two years.

The statute of limitations begins with the acceptance of the work.

literature

  • Moritz Menges: Consequences of the statute of limitations for subsequent performance under sales law . Nomos, Baden-Baden 2008, ISBN 978-3-8452-1032-2 .
  • Mandy Kandler: Purchase and supplementary performance . Gieseking, Bielefeld 2004, ISBN 3-7694-0938-8 .
  • Ronald Moosburner: The supplementary performance in the event of changes in the buyer's condition of the undetected defective purchase item . Kovač, Hamburg 2013, ISBN 978-3-8300-6578-4 .
  • Melanie Sandidge: The priority of supplementary performance: a comparative study of German, US and UN sales law . Kovač, Hamburg 2011, ISBN 978-3-8300-5821-2 .
  • Benjamin Schulz: The subsequent fulfillment under sales law - content, scope and scope . Kovač, Hamburg 2014, ISBN 978-3-8300-7671-1 .
  • Frank Skamel: Subsequent performance in the case of material purchases: on the content of rework and replacement delivery as well as how they are differentiated from compensation . Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149577-9 .

Individual evidence

  1. ↑ Ulrich Büdenbender: § 433 , Rn. 10. 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 . Stephan Lorenz: Compensation for breach of duty - an example of the hasty criticism of the law of obligations reform . In: JuristenZeitung 2001, p. 742.
  2. ↑ Ulrich Büdenbender: § 439 , Rn. 1. 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 .
  3. ↑ BT-Drs. 14/6040 , p. 211.
  4. ↑ ECJ, judgment of June 16, 2011, cases C-65/09 and C-87/09 = Neue Juristische Wochenschrift 2011, p. 2269.
  5. ↑ Stephan Lorenz: Installation and removal obligation of the seller in the case of subsequent performance under sales law . In: Neue Juristische Wochenzeitschrift 2011, p. 2241. Kai Purnhagen: On the interpretation of the obligation to provide supplementary performance - a bang from Luxembourg. In: European Journal for Business Law 2011, p. 626.
  6. ↑ BGHZ 192, 148 .
  7. ↑ a b Peter Picht: Legislative extensions and installations in subsequent fulfillment under sales law . In: JuristenZeitung 2017, p. 807 (808).
  8. ^ Peter Huber: The new sales law . In: New Journal for Construction Law and Procurement Law 2018, p. 72.Dirk Looschelders: New regulations in sales law through the law to reform building contract law and to change liability for defects under commercial law . In: Juristische Arbeitsblätter 2018, p. 81. Stephan Lorenz: Basic knowledge - civil law: New regulations in warranty law as of 1.1.2018 . In: Legal training 2018, p. 10. David Markworth: The reform of the sales law warranty for defects . In: Jura 2018, p. 1.
  9. ^ Christian Berger: § 439 . In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  10. ↑ Stefan Greiner: Law of Obligations Special Part: contractual obligations . 2nd Edition. Springer, Berlin 2019, ISBN 978-3-662-57790-5 , § 2 Rn. 24. Ulrich Büdenbender: § 439 , Rn. 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 .
  11. ^ Harm Peter Westermann: § 439 , Rn. 2. 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 . Ulrich Büdenbender: § 439 , Rn. 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 .
  12. ↑ Ulrich Büdenbender: § 439 , Rn. 6. 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. ↑ Detlev Schmidt: § 439 , Rn. 3. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  14. ^ Christian Berger: § 434 , Rn. 6. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  15. ↑ 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 .
  16. ↑ Peter Kreutz: The sales law warranty and its limits - considerations on § 434 III Alt. 1 BGB for delivery of a higher quality aliud by the seller . In: Legal worksheets 2017, p. 655. Hans-Joachim Musielak: The wrong delivery when buying pieces according to the new law of obligations . In: Neue Juristische Wochenschrift 2003, S. 89. Andreas Thier: Aliud and minus delivery in the new sales law of the civil code . In: Archive for civilist practice 2003, p. 399.
  17. ^ Louis Pahlow: The legal deficiency in the purchase of goods. In: Juristische Schulung 2006, p. 289.
  18. ^ BGH, judgment of January 23, 2008, VIII ZR 246/06 = Neue Juristische Wochenschrift 2008, p. 1147.
  19. ↑ Dagmar Kaiser: Unlawful request to remedy defects . In: Neue Juristische Wochenschrift 2008, p. 1709.
  20. ↑ a b c Stefan Greiner: law of obligations special part: contractual obligations . 2nd Edition. Springer, Berlin 2019, ISBN 978-3-662-57790-5 , § 2 Rn. 102.
  21. ^ So Moritz Pöschke: The elective competition . In: JuristenZeitung 2010, p. 349 (353). Jürgen Stamm: A plea for a return to the guilty party and the power to replace it as legal figures to cope with alternative performance majorities . In: JuristenZeitung 2015, p. 920. Ulrich Büdenbender: The buyer's claim for supplementary performance - election guilt or elective competition? In: Archive for civilist practice 2005, p. 386.
  22. ^ So Mandy Kandler: Purchase and supplementary performance . Gieseking, Bielefeld 2004, ISBN 3-7694-0938-8 , pp. 436 . Andreas Spickhoff: The buyer's claim to supplementary performance - dogmatic classification and legal nature . In: Betriebs-Beratung 2003, p. 589 (593).
  23. ^ Harm Peter Westermann: § 439 , Rn. 4. 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 . Ulrich Büdenbender: § 439 , 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 .
  24. ↑ Ulrich Büdenbender: § 439 , 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 .
  25. ↑ OLG Saarbrücken, judgment of May 29, 2008, 8 U 494/07 - 140 = Neue Juristische Wochenschrift, p. 369 (370).
  26. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations II: Special Part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 7 Rn. 7. Andreas Spickhoff: The buyer's claim to supplementary performance - dogmatic classification and legal nature , in: Betriebs-Berater 2003, p. 592.
  27. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations I: General Part . 21st edition. CH Beck, Munich 2015, ISBN 978-3-406-66736-7 , Rn. 123.
  28. ↑ Kurt Schellhammer: The new sales law - the buyer's rights of material defects . In: Monthly for German Law 2002, p. 301. Thomas Ackermann: The post-performance obligation of the piece seller . In: JuristenZeitung 2002, p. 378 (379).
  29. ↑ Ulrich Büdenbender: § 439 , Rn. 26. 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 .
  30. ↑ BGHZ 168, 64 .
  31. ↑ Walter Weidenkaff: § 439 , Rn. 15. In: Otto Palandt (Ed.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 . Herbert Roth: Unit purchase and subsequent performance through delivery of a defect-free item . In: Neue Juristische Wochenschrift 2006, p. 2953.
  32. ↑ Thomas Ackermann: The post-performance obligation of the piece seller . In: JuristenZeitung 2002, p. 378. Florian Faust: Limits of the claim to replacement delivery in the case of generic debt . In: Journal for Contract Design, Obligations and Liability Law 2004, p. 252.
  33. ↑ Michael Jaensch, The scope of subsequent fulfillment under sales law . In: Neue Juristische Wochenschrift 2012, p. 1025. Stefan Weise: Supplementary performance based on the latest technology . In: Neue Juristische Wochenschrift-Spezial, p. 684.
  34. ↑ Frank Skamel: Supplementary performance and compensation for the installation of defective items . In: Neue Juristische Wochenschrift 2008, p. 2820.
  35. ↑ BGHZ 177, 224 .
  36. ↑ BGHZ 192, 148 .
  37. ↑ ECJ, judgment of June 16, 2011, C-65/09 = Neue Juristische Wochenschrift 2011, p. 2269.
  38. ↑ BGHZ 195, 135 . BGHZ 200, 337 .
  39. ↑ Marian Thon: Removal and reinstallation costs as part of the subsequent performance . In: Juristische Schulung 2017, S. 1150. Felix Maultzsch: The new sales law regulations on the scope of subsequent performance and the seller's recourse. Berlin locuta - causa finita? In: Journal for the entire field of private law 2018, p. 1 (3–4).
  40. ↑ Ulrich Büdenbender: § 439 , Rn. 31. 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 .
  41. ↑ BGHZ 189, 196 . BGHZ 201, 83 .
  42. ↑ Stephan Lorenz: The range of the purchase law supplementary performance through new delivery . In: Neue Juristische Wochenschrift 2009, p. 1633.
  43. ↑ Michael Jaensch, The scope of subsequent fulfillment under sales law . In: Neue Juristische Wochenschrift 2012, p. 1025 (1030). Phillip Hellwege: The legal consequence of § 439 Abs 2 BGB - entitlement or cost allocation? In: Archive for civilist practice 2006, p. 136 (159).
  44. ↑ a b BGHZ 189, 196 .
  45. ↑ Stephan Lorenz, Markus Artz: Supplementary performance in sales law and place of jurisdiction of the place of performance . In: Neue Juristische Wochenschrift 2011, p. 3121. Dagmar Kaiser: Performance disruptions , Rn. 52. In: Michael Martinek (ed.): Staudinger BGB: Cornerstone of civil law . 5th edition. De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
  46. ↑ Astrid Stadler: § 269 , Rn. 8. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  47. ↑ Markus Artz: Decision discussion on BGH, April 13, 2011, VIII ZR 220/10 . In: Journal for Legal Studies 2011, p. 274.
  48. ↑ Hartmut Oetker, Felix Maultzsch: contractual obligations . 4th 2013 edition. Springer, Berlin 2013, ISBN 978-3-642-35617-9 , § 2, margin no. 183.
  49. ^ BGH, judgment of December 19, 2012, VIII ZR 96/12 = Neue Juristische Wochenschrift 2013, p. 1074.
  50. ^ Harm Peter Westermann: § 439 , Rn. 7-8. 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 . Ulrich Büdenbender: § 439 , Rn. 29. 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 . Florian Faust: Place of fulfillment for the supplementary performance . In: Juristische Schulung 2008, p. 84 (85). Carl-Heinz Witt : Removal and installation within the scope of the warranty for defects under commercial law . In: Journal for entire law of obligations 2008, p. 369 (370). Hans Brox, Wolf Walker: Special law of obligations . 44th edition. CH Beck, Munich 2020, ISBN 978-3-406-74584-3 , § 4, Rn. 41c.
  51. ↑ Dagmar Kaiser: Performance disruptions, Rn. 51. In: Michael Martinek (Ed.): Staudinger BGB: Cornerstone of civil law . 5th edition. De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
  52. ↑ Hannes Unberath, Johannes Cziupka: The place of performance of the supplementary performance . In: JuristenZeitung 2008, p. 867. Johannes Cziupka: Buyer error when determining the place of supplementary performance . In: Neue Juristische Wochenschrift 2013, p. 1043. Stephan Lorenz: The scope of the subsequent fulfillment obligation under sales law through a new delivery . In: Neue Juristische Wochenschrift 2009, p. 1633 (1635). Wolfgang Ball: The supplementary performance when buying a car . In: Neue Zeitschrift für Verkehrsrecht 2004, p. 217 (220–221).
  53. ↑ Frank Weiler: Law of Obligations General Part . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2198-6 , § 20, marginal no. 1.
  54. ^ BGH, judgment of February 6, 2013, VIII ZR 374/11 = Neue Juristische Wochenschrift 2013, p. 1365.
  55. ↑ Jakob Horn: The right to repair under commercial law . In: Neue Juristische Wochenschrift 2017, p. 289 (290). Martin Gutzeit: Is there a purchase law claim for repairs? In: Neue Juristische Wochenschrift 2007, p. 956. Christian Zwarg: The claim for supplementary performance in the BGB from the perspective of a sensible buyer . Peter Lang, Frankfurt am Main 2010, ISBN 978-3-653-00251-5 , p. 365-373 .
  56. ↑ Ulrich Büdenbender: § 439 , Rn. 34-37. 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 . Hartmut Oetker, Felix Maultzsch: contractual obligations . 4th 2013 edition. Springer, Berlin 2013, ISBN 978-3-642-35617-9 , § 2, margin no. 219.
  57. ^ Yves Georg: New regulation of the refusal of supplementary performance in the purchase of consumer goods . In: Neue Juristische Wochenschrift 2018, p. 199.
  58. ↑ BT-Drs. 14/6040 , p. 232.
  59. ^ Harm Peter Westermann: § 439 , Rn. 22. 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 . Ulrich Büdenbender: § 439 , Rn. 46. ​​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 .
  60. ↑ Stephan Lorenz: Basic Knowledge - Civil Law: New regulations in warranty law as of 1.1.2018 . In: Legal Training 2018, p. 10 (12).
  61. ↑ a b Dagmar Kaiser: Performance disruptions, Rn. 69. In: Michael Martinek (Ed.): Staudinger BGB: Cornerstones of civil law . 5th edition. De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
  62. ↑ ECJ, judgment of April 14, 2008, case C- 404/06 = Neue Juristische Wochenschrift 2008, p. 1433.
  63. ↑ BGHZ 170, 31 .
  64. ↑ Thomas Raab: § 635 , Rn. 1. 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 .
  65. ↑ Stefan Greiner: Law of Obligations Special Part: contractual obligations . 2nd Edition. Springer, Berlin 2019, ISBN 978-3-662-57790-5 , § 4 Rn. 126. Dieter Medicus, Stephan Lorenz: law of obligations II: special part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 37 Rn. 12.
  66. ^ Stefan Leupertz, Claus Halfmeier: § 635 , Rn. 4. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  67. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations II: Special Part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 37 Rn. 3.
  68. ↑ BT-Drs. 14/6040 , p. 265.
  69. ↑ Dieter Medicus, Stephan Lorenz: Law of Obligations II: Special Part . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-69406-6 , § 37 Rn. 12.
  70. ^ Stefan Leupertz, Claus Halfmeier: § 635 , Rn. 5. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 . Thomas Raab: § 635 , Rn. 12a-13. 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 . Frank Peters, Florian Jacoby: § 634 , Rn. 34. In: Michael Martinek (ed.): J. von Staudinger's commentary on the German Civil Code: Sections 631–651 (law on contracts for work and services) . De Gruyter, Berlin 2013, ISBN 3-8059-0784-2 .
  71. ↑ Thomas Raab: § 635 , Rn. 19-20. 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 . Frank Peters, Florian Jacoby: § 634 , Rn. Marg. 23. In: Michael Martinek (Ed.): J. von Staudinger's commentary on the Civil Code: §§ 812–822 (unjust enrichment) . Verlag Walter de Gruyter, Berlin 2007, ISBN 978-3-8059-1036-1 .
  72. ↑ BGHZ 174, 110 . BGHZ 90, 344 . BGHZ 91, 206 .
  73. ^ Stefan Leupertz, Claus Halfmeier: § 635 , Rn. 6. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  74. ↑ BGH, judgment of January 8, 2008, X ZR 97/05 = Neue Juristische Wochenschrift Jurisdiction Report 2008, p. 724.
  75. ↑ Thomas Raab: § 635 , Rn. 15. 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 .
  76. ↑ Dirk Looschelders: law of obligations special part . Vahlen, 2015, p. 254-255 .
  77. ↑ Christoph Hirsch: law of obligations special part . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6491-4 , Rn. 549.
  78. ↑ BT-Drs. 14/6040 , p. 265.