Warranty and guarantee – these are the differences!

If goods have a defect at the time of purchase, the buyer has a legal warranty right according to. § 437 German Civil Code (BGB). Warranty law means that the seller is obliged to replace or repair a defective purchased item.

Is this so called. Subsequent performance excluded, may be resorted to the right of withdrawal and reduction, in certain cases, a claim for damages may also be considered (see below). The assertion of this claim must be made within the warranty period (usually 2 years).

Of course, the defect must also be reported, which means that the buyer must inform the seller that there is a defect and inform him whether he would prefer to have a new defect-free product or have the defect repaired.

When is a defect?

Whether there is a defect in the purchased item is determined by § § 434, 435 BGB. According to this, a distinction must be made between material defects and defects of title.

A material defect in the legal sense is present if:

  • the commodity does not have the agreed upon condition,
  • Example: Seller claims to sell a "brand new" car, but in fact it is a used car
  • Example: Bicycle declared as "absolutely functional", which actually has no more wheels
  • Example: Lawn mower that does not mow
  • Example: Washing machine assembled by the seller loses water during washing
  • Example: such a bad translation that the instructions are incomprehensible or instructions for a different item than the one purchased
  • Example: Instead of white wine, red wine is delivered or instead of 5 bottles of wine, only 3 bottles are delivered

The decisive factor is that the defect was already present at the time the purchase contract was concluded. If the defect occurs within six months after the purchase, the legal presumption of § 477 BGB applies that the item was already defective at the time of the conclusion of the purchase contract (however, only for consumers, not for entrepreneurs).

This means that the seller bears the burden of proof within this period of time. Thus, in order to escape the warranty, he must prove that the item was free of defects at the time of purchase. After the expiration of six months the burden of proof is reversed at the expense of the buyer.

Not only material defects, but also defects of title of the object of purchase give rise to a warranty claim of the buyer. In practice, defects of title occur mainly in real estate purchase contracts.

A defect of title exists if third parties can assert rights against the buyer with regard to the item. This is z. B. then the case, if with a real estate purchase a right of a third party (land charge, mortgage, etc.) is not valid.) is registered in the land register. Otherwise, the defect of title is of little significance in practice.

Apart from the legally defined defects, there is also a defect if the seller or manufacturer has guaranteed certain properties of the purchased item that it does not have.

What are the legal warranty rights?

Principle: Priority of subsequent performance

Subsequent performance is always the first warranty right that applies in the case of material defects. If there is a defect in the purchased goods, the seller must be granted the right to first provide subsequent performance.

Subsequent performance: rectification of defects or subsequent delivery

The buyer has the right to choose between a subsequent delivery and a rectification of the defect. He can therefore choose between the exchange for a defect-free article and repair. Only if a supplementary performance would be connected with disproportionate effort or costs, the seller can refuse a supplementary performance.

Withdrawal from the contract is only possible if there is also a right of withdrawal. This can be either contractually agreed or enshrined in law. The statutory right of rescission provides that rescission is only possible if there is a material defect and no subsequent performance is possible.

In this case, the buyer must return the purchased item and the seller must refund the purchase price. Both parties are placed in the same position as if the purchase contract had never existed.

An alternative to the withdrawal from the purchase contract is the reduction of the purchase price. In this case the buyer keeps the defective goods. In return, the purchase price is reduced. The amount of the discount depends on how serious the defect is.

The buyer’s claim for damages is a special warranty right. The buyer is entitled to supplementary performance, price reduction and rescission regardless of whether the seller is also responsible for the defect of the item. On the other hand, the seller is liable for damages only if he is also responsible for the defectiveness. However, the burden of proof for the seller’s fault lies with the buyer and is often difficult in practice.

A prerequisite for a claim for damages is also that damage has occurred at all. This is not to be assumed on the basis of the defect alone. In this case, the general warranty rights are available. However, if the defect causes the damage in the first place, the seller is liable for it.

This is z. B. the case if a defective toaster catches fire and damages the kitchen equipment in the process.

Compensation for wasted expenses ( = reimbursement of expenses) is an alternative to compensation for damages. If the buyer has already incurred further expenses in connection with and in anticipation of a defect-free purchase item, he can claim this money from the seller.

Example: Shortly after buying a car, the buyer purchases winter wheels for it. However, the car turns out to be defective and is returned. The winter wheels are now no longer needed. In the case of withdrawal from the purchase contract, the buyer can also claim the costs for the winter wheels in addition to the refund of the purchase price.

Which periods apply to the warranty claim?

Generally, a warranty period of 2 years applies to purchased new goods (§ 438 para. 1 no. 3 BGB). In the case of second-hand goods, it can be shortened to 1 year by GTC or agreement between the contracting parties. However, the warranty can also be contractually excluded if no warranty was assumed and the defect was not fraudulently concealed by the seller. In addition, the warranty period can also be extended by contract.

In the case of a purchase contract between consumers, the exclusion of the warranty is not problematic. In the B2C sector, d. h. In the case of a transaction between a consumer and an entrepreneur, some restrictions apply with regard to the inclusion of an exclusion of liability in general terms and conditions (GTC) due to the special need for protection of the consumer. Thus, liability for damage to the life, body and health of the consumer that is based on gross negligence on the part of the dealer may not be excluded by GTCs.

What is a warranty?

The term warranty refers to the seller’s voluntary assumption of a guarantee for the properties of the purchased item, which goes beyond the statutory warranty. Due to the voluntary nature of such agreements, the seller may determine the scope of this warranty. If the warranty case occurs, the buyer has a warranty claim against the seller, the legal consequences of which result from the individual warranty declaration.

Manufacturer, quality and durability guarantee

Different forms of warranty are distinguished:

A quality guarantee is the seller’s guarantee of a certain quality of the purchased item.

In the case of the durability guarantee, the seller guarantees that the item will retain a certain condition for a certain period of time.

The manufacturer’s warranty is a guarantee given by the manufacturer of an item to the dealer. This can be both a quality and a durability guarantee at the same time.

Claimant – dealer or manufacturer?

For the buyer the correct claim opponent is with a defective purchase thing the dealer. If there is actually a defect, the dealer in turn has a right of recourse against the manufacturer of the item. This means that he can claim back from the manufacturer what he had to pay to the buyer on the basis of the warranty.

If, on the other hand, there is a manufacturer’s warranty, the end buyer also has a claim against the manufacturer arising from the warranty.

How to make a warranty claim?

However, you must assert your warranty claim. Accordingly, in the case of a warranty claim, you must give notice of the defects in the same way as in the case of a statutory warranty claim, d. h. notify the guarantor and demand removal.

It is best to complain about defective items in writing. In this way, you can later prove that you have complied with the relevant period. In addition, you should set the guarantor or – in the case of the statutory warranty – the seller a reasonable deadline for subsequent performance. After the expiration of this period, you can fall back on the other warranty rights

Exclusion of liability with simultaneous guarantee ineffective

If the guarantor has guaranteed a certain quality, but also an exclusion of liability for corresponding defects was agreed, this exclusion of liability is ineffective. Her guarantee claim therefore remains.

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