Legal guarantee of conformity for goods

A. Institute of the statutory warranty

Consumers have a right to expect that the goods they have purchased are free of defects.

If a purchased product nevertheless proves to be defective, the buyer is entitled to a statutory warranty.

This claim is directed against the seller of the goods, i.e. the person who sold the goods, but not against the manufacturer.

If an entrepreneur sells goods to a consumer (so-called sale of consumer goods), the seller can neither limit nor exclude the statutory warranty. The statutory provisions are mandatory.

B. Defectiveness of the goods

The purchased goods are defective if they do not have the quality or characteristics agreed between the buyer and seller. If the parties have not made any special agreements, the item is defective if it cannot be used as usual or is not as usual and can be expected.

C. Time of the defectiveness

The prerequisite for a warranty claim by the buyer is that the defect already existed at the time of purchase.

The seller is not liable for defects that arise later, for example due to improper use or wear and tear.

D. Burden of proof

If the buyer wishes to assert a warranty claim, he must always demonstrate and, if necessary, prove that there is a defect in the purchased item and that this was already present at the time of purchase. Since it is often not easy for consumers to recognize the cause of a defect, the law contains a simplification of the burden of proof for consumer goods purchases: it is assumed that defects that become apparent within six months of the transfer of the purchased item were already present at the time of transfer. In the event of a dispute, the entrepreneur must therefore prove that the item was free of defects when it was handed over.

After the six months, the buyer is again fully responsible for providing evidence. For this purpose, he can, for example, have an expert's report drawn up.

E. Rights of the buyer in the event of defects

If a product is defective at the relevant time, the buyer can first and foremost demand that the seller repair it or deliver new, defect-free goods. If this results in costs, for example for material or transportation of the goods, these shall be borne by the seller.

The buyer may set the seller a reasonable deadline for the repair or delivery of new, defect-free goods. If the seller does not fulfill his obligation within the deadline, the buyer can reduce the purchase price or withdraw from the contract. The buyer is also entitled to this right if two unsuccessful attempts have been made to repair the item.

F. Limitation periods

The law does not stipulate a specific period within which the buyer must inform the seller of the defect. However, the statutory warranty rights generally expire after two years. In the case of the purchase of used goods, the limitation period can be reduced to one year by agreement between the parties. With regard to the six-month reversal of the burden of proof, it is therefore advisable for the consumer to act quickly.

G. Legal bases

The legal norms relevant for consumers regarding the statutory warranty can be found in Sections 434 to 442 and Sections 474 to 477 of the German Civil Code.

Commercial guarantee/warranty

A. Institute of the guarantee

The guarantee must be distinguished from the statutory warranty. A guarantee is always given when a seller, manufacturer or a third party gives the buyer an additional assurance that goes beyond the statutory warranty rights. Such an assurance can be, for example, that the item will retain a certain quality within a certain period of time (durability guarantee).

In contrast to the statutory warranty, a guarantee is always a voluntary service that is not prescribed by law. In practice, guarantees are often offered by the manufacturer or the seller.

B. Content of the guarantee

The guarantor can decide how long the guarantee should last, what content it should have and whether it is offered free of charge or for an additional fee. In principle, the guarantor is free to decide how to structure the guarantee.

C. Guarantee declaration

If a guarantee is granted, the guarantee declaration for sales contracts with consumers must meet special requirements in terms of content and form:

• the guarantee declaration must be simple and comprehensible,
• contain a statement that the statutory warranty rights are not restricted and
• state the content of the guarantee, all essential information required to assert the guarantee and the name and address of the guarantor.

If one of these requirements is not met, the guarantee remains valid.

Consumers may also request that the guarantee statement be communicated to them in text form.

D. Guarantee or warranty?

It is important for consumers to know that a manufacturer's guarantee does not restrict statutory warranty claims. For example, anyone who has bought a defective television does not have to be told by the seller that the manufacturer has provided a guarantee and that they should contact them. Irrespective of the warranty, the buyer always retains his warranty claims against the seller in the event of a defect. He is therefore free to decide whether he prefers to assert his rights under the statutory warranty against the seller or under the guarantee against the manufacturer, for example.

E. Legal bases

The legal norms relevant for consumers regarding the guarantee can be found in §§ 443 and 479 of the German Civil Code.

Right of withdrawal

In Germany, consumers have no right of withdrawal for contracts concluded away from business premises where the service is provided and paid for immediately upon conclusion of the negotiations and the consideration to be paid by the consumer does not exceed EUR 40.

In Germany, there is no requirement to obtain the consumer's written consent for contracts concluded by telephone.

In Germany, traders can demand payment for contracts concluded off-premises during the 14-day withdrawal period.

Settlement of consumer disputes (for goods and services)

If a dispute arises between consumers and companies when purchasing goods or services, it is not only possible to take legal action in court. Consumer dispute resolution can also be initiated. The arbitration procedure is a way for consumers to settle a dispute quickly, without having to consult a lawyer and without complicated formalities.

There are state-recognized consumer arbitration boards in Germany for the implementation of consumer dispute resolution. In order to receive this recognition, the arbitration boards must meet certain requirements. These include, for example, that their mediators are independent, provide consumers with sufficient information about the procedure and base their mediation proposals on applicable law and, in particular, comply with mandatory consumer protection laws.

There are currently 27 recognized consumer arbitration boards in Germany. 24 of them are sector-specific, i.e. they have limited their jurisdiction to certain economic sectors or companies, for example. If there is no sector-specific consumer arbitration board for the dispute, the general consumer arbitration boards or, alternatively, the universal arbitration board of the federal government can help.

The consumer arbitration procedure is voluntary for both parties and generally free of charge for consumers. It can be applied for and carried out online. If the company is also willing to participate in the arbitration, the consumer arbitration board will obtain the necessary information and then submit an arbitration proposal to the parties within 90 days, stating its reasons. The parties themselves decide whether to accept the proposed solution. If the arbitration proposal is not accepted by both parties, the procedure ends. The parties still have recourse to the courts. There is no specific time limit for this.

Consumer arbitration is also available for disputes with companies from another EU member state, Norway, Iceland or Liechtenstein. The European Consumer Center Germany (ECC) refers consumers to the right consumer arbitration body.

The European Commission has set up an online dispute resolution platform (OS platform for short) for disputes arising from contracts that consumers from an EU member state have concluded with a company based in the EU via the internet (link to https://ec.europa.eu/consumers/odr/main/?event=main.home2.show). This can be used to contact dispute resolution bodies throughout Europe or to find a solution directly with the company. The ODR platform can be used in all EU languages, Icelandic and Norwegian.

As the national contact point for online dispute resolution ECC Germany also provides advice on the ODR platform.