Consumer rights and guarantees

Consumer rights in the event of defective products may arise from the statutory warranty or from a guarantee provided.

A. Institute of the statutory warranty

Basic principles

The seller of a product is obliged to deliver a defect-free product to the buyer.

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

The prerequisite for a warranty claim 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.

The warranty 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 restrict nor exclude the statutory warranty. The legal requirements are mandatory.

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.

Time of defectiveness

A warranty claim is given if 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.

Burden of proof

In principle, the buyer must demonstrate and, if necessary, prove that there is a defect in the purchased item and that it was already present at the time of purchase. In the case of consumer goods purchases, however, the law stipulates a reversal of the burden of proof: According to this, it is presumed that defects that become apparent within six months of handover of the purchased item were already present at the time of handover. 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.

Obligations of the seller in the event of defects

If a product is defective at the relevant time, the seller is primarily obliged to provide subsequent performance. In this respect, the buyer can choose whether he would prefer a repair or a new defect-free product. However, the seller may refuse the type of subsequent performance chosen by the buyer if it is only possible at disproportionate cost. If the seller delivers a defect-free item for the purpose of subsequent performance, he can demand the defective item back from the buyer.

Any costs incurred for subsequent performance, such as for material or transportation of the goods, shall be borne by the seller.

If the seller does not comply with the buyer's request for repair or delivery of new goods free of defects within a period set by the buyer, the buyer may 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.

Limitation periods

The statutory warranty rights generally expire after two years. In the case of the purchase of used goods, the limitation period may be reduced to one year by agreement between the parties.

Legal basis

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

B. Institute of the guarantee

Basic principles

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).

Unlike 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.

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.

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 statement must be simple and understandable,
• 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 can also request that the guarantee statement be communicated to them in text form.

Guarantee or warranty?

A manufacturer's guarantee does not restrict the buyer's statutory warranty claims. Sellers can therefore not refer buyers to the fact that the manufacturer of the product 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 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.

Legal basis

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

2. responsibilities after the sale

A. Recourse of the seller

Principles

If the seller has been held liable by the buyer for a defective product under the statutory warranty, the seller in turn has a warranty claim against his supplier if the defect was already present when the goods were handed over to the seller.

In the case of the sale of a newly manufactured item, the seller can also claim back from its supplier any expenses it has incurred vis-à-vis the buyer in the course of subsequent performance (e.g. repair costs, transport, travel, labor and material costs).

Further claims in the supply chain

The supplier as well as other buyers in the supply chain can take recourse against their sellers in the same way if they are entrepreneurs.

Burden of proof

The burden of presentation and proof is generally on the party wishing to take recourse.

If the last contract in the supply chain is a sale of consumer goods, the six-month reversal of the burden of proof between the seller and the consumer also applies between the seller and the supplier. In this case, the point in time at which the risk passes to the consumer is decisive for the start of the six-month period.

The facilitation of the burden of proof also applies in favor of the supplier and in the further supply chain if the respective recourse debtor is an entrepreneur.

Statute of limitations

The seller's claims against his supplier are generally time-barred within two years of delivery of the goods. However, in the case of the sale of a newly manufactured item, the seller's claims against its supplier shall lapse at the earliest two months after the last seller has fulfilled the buyer's rights in respect of defects. This suspension of the limitation period ends no later than five years after delivery of the item to the seller.

These limitation periods shall also apply accordingly to the claims of the supplier and in the remaining supply chain if the seller against whom a claim is made is an entrepreneur.

Deviating agreements

If the last contract in the supply chain is a purchase of consumer goods, the possibilities of recourse existing between the seller and the supplier cannot be excluded unless the entrepreneur making the claim is granted equivalent compensation.

This also applies to the claims of the supplier and the other buyers in the supply chain if the respective recourse debtor is an entrepreneur.

Legal bases

The relevant legal norms on recourse can be found in Sections 445a, 445b and 478 of the German Civil Code.