Self-help

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In the law of obligations, self-implementation is the removal of a material or legal defect by the claimant at the expense of the opponent.

General

If deficiencies appear, the legal question arises as to who should and can eliminate them. As a rule, this will be the seller or entrepreneur who delivered the defective item. Self-implementation is an exception that is restricted to a few areas of law . For a long time, part of the specialist literature has rejected self-implementation in sales contracts as impossible, and court rulings also assumed that the buyer would only have the right to withdraw from the contract, to reduce the price or to pay damages. If the buyer remedies a defect in the purchased item after this judgment, without having previously given the seller the necessary deadline for subsequent performance, he can not demand reimbursement of his costs of remedying the defect .

Legal issues

Doing it yourself occurs in different areas of law and affects different types of contracts. Self-implementation was originally provided for by law in tenancy law and contracts for work and services . With the new regulation of the buyer's rights of defects in the purchase contract in the context of the modernization of the law of obligations, the legislature deliberately refrained from the right to carry out the work at the seller's expense, as can be seen in particular from the comparison of the buyer's rights listed in § 437 No. 1 to 3 BGB with the new ones established and otherwise essentially matching rights of the customer in the contract for work ( § 634 No. 1 to 4 BGB). Above all, only the customer has the right to carry out the work himself, whereas the buyer does not have such a right. For this reason, there is also no unintended loophole in the law , which would be a prerequisite for an analogous application of Section 326 (2) sentence 2 BGB. Due to the amendment to the travel law , self-implementation has also been possible for travel contracts since July 2018 .

Purchase contract

Since self- performance is expressly not provided for in sales contract law, the buyer must set the seller a reasonable deadline for subsequent performance before self- performance and allow this to pass without success. Then - after a reasonable grace period - the removal of defects by the buyer or by a third party on behalf of the buyer is unrestrictedly permissible and customary. The resulting costs are to be borne by the seller as compensation . A self-performance before setting and expiry of a reasonable grace period has the consequence that the buyer loses his warranty claims from § 437 BGB. That judgment concerned the purchase of a dog that needed urgent veterinary treatment shortly after delivery . The BGH decided here that the deadline for supplementary performance required in accordance with Section 281 (1) sentence 1 of the German Civil Code (BGB) can be dispensed with if, among other things, there are special circumstances that justify the immediate assertion of a claim for damages after weighing up the interests of both parties. In December 2009, the Federal Court of Justice reaffirmed its established case law on the exchange contract for a riding horse .

If the object owed only the genus determined by, so has the seller as long as the performance of the genus is still possible to generally its inability or unwillingness to remedy always represented . It applies even if, in the event of a defect, the hypothetical will of the party should be able to replace a piece of debt with a similar and equivalent item.

In the specialist literature, the issue of repairing damage by the buyer is still controversial in the case of sales contracts.

Legal consequences of premature self-action in the purchase contract

Basically, the buyer's rights in the event of defects are based on § 437 BGB. Accordingly, the buyer can request supplementary performance ( Section 439 BGB), withdraw from the contract ( Section 323 (1) or Section 326 (5) BGB) or reduce the purchase price ( Section 441 BGB) or, alternatively, compensation ( Section 280 , Section 281 , Section 283 and § 311a BGB) or reimbursement of futile expenses ( § 284 BGB).

These legal remedies of the buyer are influenced in various ways by a hasty self-action . The success of the service (defect-free purchase item) occurs without any action by the seller. This is referred to as achievement of the purpose and represents a case of impossibility . This frees the seller from his obligation to supplementary performance ( § 439 BGB) according to § 275 Paragraph 1 BGB. As far as the subsequent performance is impossible according to § 275 Abs. 1 BGB, the buyer can withdraw from the contract according to § 437 No. 2, § 440 , § 326 Abs. 5 BGB. In the event of a premature action, the buyer is solely responsible for the circumstance that would entitle him to withdraw. A withdrawal is therefore excluded according to § 323 Paragraph 6 BGB. The same applies to a reduction in accordance with § 437 No. 2, § 441 , since this (“instead of withdrawing”) requires the conditions for withdrawal.

A claim for damages by the buyer for the costs of self- performance would only come into consideration in the form of damages instead of performance with the exclusion of the obligation to perform according to § 437 No. 3, § 280 Paragraph 1, Paragraph 3, § 283 BGB. However, such a claim requires the seller to the impossibility of subsequent represented has. This is presumed according to Section 280 (1) sentence 2 BGB, so the seller must prove that he is not responsible for the impossibility. However, since the impossibility of supplementary performance comes solely from the sphere of the buyer, the exonerating evidence will regularly succeed. This means that any claim for damages on the part of the buyer is void. By doing this prematurely, the buyer loses his warranty rights in their entirety.

Release of the saved costs of the seller / entrepreneur

From a different point of view, the question to be assessed is whether the seller / entrepreneur has to surrender the costs which he would have incurred in the event of supplementary performance, but which he has saved as a result of the defect being rectified by the buyer / customer. The costs that the seller / entrepreneur saves are usually lower than the costs that the buyer / customer has expended to remedy the defect. The BGH rejects a claim to surrender the saved costs. Section 326 (2) sentence 2 BGB is not applicable because of Section 326 (1) sentence 2 BGB. According to the BGH, the priority of supplementary performance by the seller / entrepreneur is violated.

A large part of the literature, on the other hand, advocates a claim to surrender of the saved costs in accordance with Section 326 (2) sentence 2 BGB analogously. The situation after a self-assessment corresponds to that of Section 326 (2) sentence 2 BGB. Section 326, Paragraph 1, Clause 2 of the German Civil Code (BGB) is only intended to give the buyer / purchaser the right to choose between withdrawal and reduction, but not to prevent the surrender of saved costs. The fact that the buyer / orderer has struck the subsequent performance out of the hand of the seller / entrepreneur by doing it himself does not encroach on the legal sphere of the seller / entrepreneur. The seller / entrepreneur's chance of a second delivery in kind is a reflection of the buyer's / purchaser's obligation to set a deadline. If the buyer does not set a grace period, he only has to bear the loss of the right of withdrawal and reduction in price as his own legal disadvantage.

rental contract

The tenant must first report the defects he has identified in the rented apartment ( notification of defects ) and give the landlord a period to remedy them so that he does not lose his warranty rights from § 536c BGB against the landlord. According to Section 536a (2) of the German Civil Code ( BGB), the tenant may only remedy a material or legal defect in the rented apartment ( Section 536 BGB) by means of self-improvement and demand reimbursement of expenses if the landlord is in default of remedying the deficiency or immediately remedying the defect is necessary to maintain or restore the inventory of the rental property. The tenant may only do this himself during the term of the contract.

Travel contract

In terms of travel law, 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 . If the package tour is inadequate, the traveler can request remedial action in accordance with Section 651i Paragraph 3 BGB according to Section 651k Paragraph 1 BGB ( supplementary performance ) or remedy the situation himself in accordance with Section 651k Paragraph 2 BGB. Here, too, the prerequisite is that the traveler has previously given the tour operator - i.e. not the specific service provider on site - a reasonable deadline to remedy the situation. This deadline is not necessary if the tour operator refuses to provide a remedy or if the traveler is particularly interested in immediate remedial action ( Section 651c (2) sentence 2 BGB).

Work contract

In accordance with Section 634 No. 2 of the German Civil Code (BGB), the customer has the right in the event of a defective work to eliminate the defect himself or to have it eliminated and to demand reimbursement of the necessary expenses . According to Section 637, Paragraph 1 of the German Civil Code, the prerequisite for self-performance is that the customer has set the entrepreneur a reasonable deadline for subsequent performance and this has expired without success. A deadline for supplementary performance is unnecessary in accordance with Section 637 (2) BGB if the supplementary performance has failed or is unreasonable for the customer. The supplementary performance always has priority over the other warranty rights in the case of a work contract.

Before the expiry of a reasonable grace period, the costs of self-improvement are only reimbursable if the buyer or the entrepreneur is required to carry out repairs immediately due to an obligation to reduce damage . This is the case if the seller or the entrepreneur would incur high damage caused by default , such as rent for a replacement machine, by setting a grace period .

International

In the UN sales law that applies to a sales contract with at least one international contracting party, self-implementation is unknown. In the event of defects (Art. 35 CISG), the buyer has the right to either a replacement delivery (Art. 46 Paragraph 2 CISG) or subsequent improvement ( repair ; Art. 46 Paragraph 3 CISG) within the scope of subsequent performance (Art. 48 CISG). For this purpose, the BGH decided that in the event of non-fulfillment or poor fulfillment of a contract, the buyer - provided the seller has no right to subsequent fulfillment according to Art. 48 CISG - is entitled to take appropriate measures to bring about appropriate fulfillment and to inform the seller in the limits of Art. 77 CISG - to invoice the costs as damage.

This is how the OGH ruled in Austria in 2002 . The ABGB describes self-implementation as a remedy ( Section 933a, Paragraph 2 ABGB). If the buyer makes an effort for the seller that he should have made himself according to the law, he has the right to demand compensation ( § 1042 ABGB).

In Switzerland there is no statutory right to rectify the situation; it must be contractually agreed. Then Art. 102 OR and Art. 107 OR apply. Thereafter, the buyer must give the seller default and set a grace period (Art. 107 OR). A right to rectification is only provided by law in the case of contracts for work and services for less significant defects ( Art. 368 Paragraph 2 OR).

See also

literature

Individual evidence

  1. ↑ Stephan Lorenz , Self-Implementation of Defect Removal in Sales Law , in: NJW 2003, 1417 ff.
  2. ↑ BGH, judgment of February 23, 2005, Az .: VIII ZR 100/04 = BGHZ 162, 219
  3. ↑ BT-Drs. 14/6040 of May 14, 2001, draft law for the modernization of the law of obligations , p. 229
  4. ^ BGH, judgment of June 22, 2005, Az .: VIII ZR 1/05 = NJW 2005, 3211
  5. ↑ BGH, judgment of December 7, 2005, Az .: VIII ZR 126/05 = NJW 2006, 988
  6. ^ BGH, judgment of June 7, 2006, Az .: VIII ZR 209/05 = BGHZ 168, 64
  7. ↑ Katharina Vera Boesche / Jens Thomas Füller / Maik Wolf (eds.), Variationen im Recht , 2006, p. 46 ff.
  8. ↑ BGH, judgment of February 23, 2005, Az .: VIII ZR 100/04 = BGHZ 162, 219
  9. ↑ cf. instead of many Christian Grüneberg, in: BGB Commentary , 73rd edition, 2014, § 326 marginal no. 13
  10. ↑ BGH, judgment of March 30, 1983, Az .: VIII ZR 3/82 = NJW 1984, 1552
  11. ↑ Martin Löhnig, Law of Obligations II, Special Part 1: Contractual Obligations , Volume 1, 2009, p. 73
  12. ↑ Rainer Gildeggen et al. (Ed.), Private Business Law: Compact Knowledge for Business Economists , 2013, p. 213 ff.
  13. ^ Christian Siller, Internationales UN Sales Law , 2009, p. 80
  14. ↑ BGH, judgment of September 24, 2014, Az .: VIII 394/12 = BGHZ 202, 258
  15. ^ OGH, judgment of January 14, 2002, Az .: 7 Ob 301 / 01t