If you have bought something, the seller must hand over the goods to you as agreed, i.e. free of defects. This claim is regulated by law. If the purchased goods have a defect, then you have warranty rights, do not confuse warranty with guarantee. The former is a legal right you have against the seller. The latter is a voluntary service of the manufacturer or dealer. Information on which rights the warranty covers can be found in the warranty conditions.
Important to know: Even as a private seller, you must send your contractual partner goods that are in perfect condition. However, in the case of private purchases, different agreements may apply and the warranty rights may be excluded. Pay attention to the correct wording here.
In the case of warranty applies: In the case of defects in the goods, you can initially only Replacement delivery demand or a Repair. This is what the lawyers call "Subsequent performance". In both cases the seller bears the cost of transportation, labor and materials. For example, he may not charge you postage for sending the goods to the seller or manufacturer, nor may he charge you for spare parts and labor costs. You can make claims for subsequent performance with the help of the exchange check of consumer centers.
Whether the purchased goods should be repaired or replaced, you as the customer may decide (§ 439 paragraph 1 BGB). You are not bound to your choice, so you can also first demand a repair and later a replacement delivery. The seller may not create facts without your consent: If you request a repair, he may not simply deliver a replacement device. However, the dealer can refuse the chosen type of supplementary performance, for example, if a repair causes disproportionately high costs (§ 439 paragraph 4 BGB).
Subsequent performance by repair
In the Repair the seller does not have unlimited attempts. The law stipulates that you must tolerate a maximum of two times must be repaired before you can exercise your right to rescind the contract or reduce the purchase price. In practice, however, it also depends on the individual case. Courts have already taken the view that, in the case of technically complicated devices such as a computer, you Accept up to three attempts must.
For goods that you from the 1. January 2022 buy, then it is valid that the seller Only one attempt for the supplementary performance has (§ 475d para. 1 no. 2 BGB).
If the goods are particularly bulky or fragile, you can insist on repair on site. This was confirmed by the European Court of Justice (ECJ) in a ruling of 23. May 2019 (Az. C-52/18) decided. If it is an item that you can easily take to the post office yourself, the seller may require the return of the item. In all cases, the dealer must bear the costs. You can demand an advance payment for transport or shipping costs.
Subsequent performance by replacement delivery
Is a Replacement delivery the reasonable method of subsequent performance, you as a consumer:in only have to accept a single attempt. This also applies to contracts of sale, which you from the 1. January 2022 close. For example, if a replaced iron is again defective, you can withdraw from the contract and demand a refund of the purchase price.
Set a deadline for subsequent performance
In principle, you must set the seller a reasonable deadline for subsequent performance. If he does not meet this deadline or if the subsequent performance is unsuccessful, you can demand a reduction of the purchase price (Reduction). Use this sample letter for this purpose. Or you cancel the contract (rescission). If the deadline set by you for subsequent performance expires unsuccessfully, then you can withdraw from the contract and demand a refund of the purchase price.
You do not need to set a deadline if:
- the dealer has refused subsequent performance,
- the subsequent performance is not possible
- or you have already had two unsuccessful repair attempts.
In the case of goods that you received after the 1. If you buy a new product on January 1, 2022, you do not have to set a specific deadline for subsequent performance, but only report the defect and demand subsequent performance. For reasons of evidence, we still recommend setting a deadline.
In the following situations, you can therefore withdraw immediately even under the new legal regulations:
- a reasonable period of time has already passed after you have informed the entrepreneur about the defect,
- A failed attempt at subsequent performance has already been carried out,
- the defect is serious,
- the trader has refused subsequent performance or it is obvious that the trader will not provide subsequent performance.
In the event of withdrawal from the contract, the seller must then bear the costs and risk of returning the goods (Section 475 (2)). 6 BGB). Therefore, keep the proof of the return shipment.
The right to withdraw from the contract is only excluded in the case of very minor defects. You then have to live with the defective item, so to speak, and can only demand a reduction in price, but not a withdrawal from the contract. The extent of the reduction in price depends on the extent of the defect.
Do you want to claim if the goods are defective? Then the exchange check of the consumer centers helps you. There you will find the appropriate sample letter.
If a defect occurs within the first two years after purchase, the dealer must take action. The practice looks different, as a survey by the consumer centers from 2018 shows. Dealers stall for time, blame customers or manufacturers, and exploit ignorance.
When is compensation for use due??
Withdraw from the contract, return the object of purchase. The seller must refund the purchase price to you. You do not have to accept a voucher. However, the seller can demand compensation for use, if you were able to use the product in accordance with the contract prior to its return.
The amount of compensation for use is assessed on a straight-line basis. It is based on the purchase price and the expected useful life of the product. A computer that 1.A PC that has cost at least EUR 000 is usually used for at least five years. For each year that you have used the computer, a share of 200 euros is thus deducted. If you return the PC six months after purchase due to a defect, the dealer will receive compensation of 100 euros for the use of the device. He may deduct this from the purchase price, which he has to refund.
The situation is different if the seller replaces a defective device in the course of subsequent performance. For years, it was the practice in Germany to demand compensation for use even in this case. Both the European Court of Justice and the Federal Court of Justice have now prohibited this. After the ruling, this was also included in the law: According to this, the seller may no longer demand money for the use of the defective device if he replaces the defective device with a new one.
When must the dealer pay damages?
If the quality of the product does not meet expectations, you can claim damages in addition to reduction or withdrawal. But only if the seller is responsible for the defect. in case of doubt, he must exonerate himself if he does not want to be liable. If he has given false information, there is usually fault:
If, for example, when selling a used car, he gives a mileage of 50.000 kilometers, while the vehicle has in fact already clocked 100.000 kilometers, you can demand not only a refund of the purchase price, but also a refund of the purchase price. You are entitled to all costs for registration and deregistration of the car, for the travel costs to the registration office as well as for the expert who determined the actual mileage.
A seller must pay damages if the purchased item has a defect and the seller is responsible for this defect.
Good to know: Special rights exist for orders that are only required for a specific date. If you are waiting in vain for a wedding dress or a birthday cake, you do not even need to set a deadline to claim "damages for non-performance" to demand from the seller.
Which warranty periods must I observe?
Your warranty rights do not apply indefinitely. You are entitled to within two years after handover or receipt of the product to. Exception: The seller can be proven to have fraudulently concealed a defect. Then you still have a claim for three years from the date of knowledge of these circumstances. In the case of used goods, the seller can limit this period to one year, z.B. by general terms and conditions or individual agreements at the conclusion of the contract.
As a buyer:in you must claim defects within the warranty period. If a defect only becomes apparent shortly before the deadline expires, it is important that you prevent the statute of limitations from occurring.
You have Two main options.
- You can enter into negotiations with the seller about whether the seller accepts the defect and wants to remove it. However, the mere request to remedy the defect is not sufficient. The seller must indicate that he does not wish to invoke the statute of limitations. If, for example, the seller checks the goods for a defect, the "statute of limitations clock" is reset stopped. The statute of limitations then begins at the earliest three months after the end of the negotiations, d.h. after he has returned the inspected goods to you.
- You can also file a lawsuit or call on a conciliation office that settles disputes out of court. In this case, it is important that the conciliation body may still have to obtain the consent of the defendant in time.
For contracts concluded from 1. January 2022 are closed, applies additionally:
- If the defect becomes apparent within the limitation period?
In this case, the statute of limitations does not begin to run until four months after the defect first became apparent.
- If you have handed over the goods to the dealer or a third party for subsequent performance?
Then the statute of limitations does not start before the expiration of two months after you got the goods back.
The procedure can be avoided if the seller in writing to the "defense of limitation" waived.
What do I do if the seller claims that a defect was not present from the beginning and that I am responsible for it??
This depends on when the defect came to light.
Attention: For purchase contracts that you signed after the 1. January 2022, the 6-month period is extended to 12 months (§ 477 BGB).
If the defect occurred within the first 6 months after handover of the goods? Or. in the first 12 months for contracts from 1. January 2022?
In this case, the law presumes that the defect was already present at the time of purchase. You do not have to prove that, for example, the couch or the computer already had a defect or was functionally impaired at the time of delivery. This is what the Federal Court of Justice (BGH) and the European Court of Justice (ECJ) have to say.
Within what period you are and how you should proceed with the warranty, you can also learn directly in the exchange check.
If both agree that the defect existed from the beginning, by the way, you do not need evidence. So, in case of deficiencies, you should in any case first Repair or new delivery demand. In the exchange check you will find the right sample letter for your request.
Get assurances from the dealer in writing
Even after the expiry of the 6 months, resp. from the 1. January 2022 after the expiration of the 12 months, after the purchase, it should be sufficient, according to the consumer centers, to show that you have used the device properly and thus not caused the defect. Unfortunately, this is not always the case. It often happens that dealers refuse warranty with the remark that you have to prove the defect. Often you can only do this with the opinion of an expert.
To be able to stand up in court, you should get all of the dealer’s assurances in writing. If he refuses, caution is required. Take witnesses with you to the negotiations! payments you should always get a receipt. But the seller can also demand that you confirm receipt of the goods.
Who is liable for material defects in the case of wear parts??
The law does not know "wear parts. Whether the seller is liable for the defect in a product depends solely on whether there is a material defect and whether this defect already existed or was already present in the germ when the product was handed over to you.
Example: You have a new car. A tire bursts after only a few thousand kilometers because the rubber compound is not clean. Only the rolling of the tire on the road revealed this previously undetectable defect. In this case the seller is liable for the defect because it was already there when he sold the car.
However, the seller does not have to pay for the normal wear and tear of wear parts. This can lead to disputes, as the distinction between "wear and tear" and a material defect is often not easy to make and a material defect is often not easy to recognize.
Warranties are usually granted voluntarily by the manufacturer of a product, especially in the case of technical devices. Occasionally, dealers also do this. In addition to the statutory warranty, you can then also invoke the warranty. The manufacturer is free in the design of a warranty. At your request, he must provide you with a warranty certificate in text form.
For contracts after the 1. January 2022 the contractor must provide the warranty declaration on a durable medium at the latest at the time of delivery. In it he must list the exact warranty conditions. These include:
- Details of the guarantor,
- Duration and content of the warranty,
- the indication that this does not limit your warranty rights,
- the procedure you have to follow as a buyer.
Look carefully when reading: Producers often limit their guarantees in a variety of ways. Often they concern only certain parts or characteristics of an article, for example, the drive of the computer or the rusting through of the body of the car. It is also common that in case of a defect only spare parts are covered by the warranty. You have to pay for the installation of the parts yourself. Other manufacturers only guarantee spare parts that are not subject to wear and tear.
Before you make a claim under the manufacturer’s warranty, you should carefully study the conditions in the warranty certificate. During the legal warranty period, it is usually worthwhile to complain to the seller of the product.