Qualitative impossibility
Since the modernization of German law of obligations, the concept of qualitative impossibility has been used to describe the legal situation when a thing has a quality that cannot be changed in such a way that the thing has the properties owed. For example, if a used car is sold as accident-free even though it has been damaged in an accident, it is not possible to modify the car so that it is actually accident-free; it can be repaired, but that doesn't make it accident-free. The same applies if it is sold with a mileage of 30,000 km even though it has already driven 60,000 km. If, according to the will of the parties, a specific car is sold so that the seller cannot remedy the defect by delivering another, contract-compliant car, then it is not possible to remedy the defect in nature.
The qualitative impossibility is a sub-case of the impossibility regulated in Section 275 (1) BGB .
Liability for defects
In the new law of obligations, in contrast to the previously applicable law, it is one of the contractual obligations of a seller to ensure that the goods sold are free of defects . In the event of a material defect, the buyer has the right to supplementary performance , ie he can either request the seller to remedy the defect or to deliver a defect-free item, § 437 No. 1, § 439 BGB.
In the example of a car with accident damage mentioned in the introduction, there is an impossibility of subsequent performance. The defect cannot be remedied (the accident-free condition cannot be subsequently established), and the delivery of a defect-free item is also ruled out if the parties do not agree to the delivery of another vehicle. The buyer has the option to reduce the purchase price or to withdraw from the contract in accordance with Section 437 No. 2, Section 326 Paragraph 5 of the German Civil Code .
In the event of qualitative impossibility , the law stipulates that the obligation to pay a consideration does not cease to apply by law ( Section 326 (1) sentence 2 BGB). This distinguishes the qualitative impossibility from the other cases of impossibility. The obligation to pay only does not apply in the event of withdrawal in accordance with Section 326, Paragraph 5 of the German Civil Code (BGB) or a reduction in price or compensation instead of performance.
The purpose of this regulation is not to force the debtor to reverse the transaction, but to leave the reduction as an alternative. Furthermore, the withdrawal is excluded in the case of insignificant defects ( § 323 Paragraph 5 Sentence 2 BGB) as well as defects for which the buyer is at least predominantly responsible ( § 323 Paragraph 6 BGB).
Individual evidence
- ↑ In the opinion of the BGH, a replacement delivery for supplementary performance may otherwise also be owed for a used vehicle purchase, BGH, judgment of June 7, 2006 , Az. VIII ZR 209/05, full text.
