Andrew Th. Fischer is a freelance journalist in the south of Munich. He has many years of experience as an editor in various IT trade media, including NetworkWorld Germany, com! professional and ChannelPartner. His areas of expertise include IT security, networking and virtualization.
- The warranty is provided to customers by law, a guarantee is offered voluntarily by manufacturers and retailers.
- According to the warranty, the customer may complain about defective goods for up to 24 months.
- A warranty cannot reduce or replace the guarantee in any case.
When it comes to warranty and/or guarantee, conflicts often arise between angry customers and dealers who insist on their rights.
Photo: Annette Shaff – shutterstock.com
The terms "warranty and "warranty" are repeatedly confused, misunderstood or not applied correctly. For some years now, the explosive issue of warranty and guarantee has been boiling up again due to the VW scandal about exhaust gas manipulation. The Federal Court of Justice has ruled in a 25. In a landmark ruling issued on May 20, 2020, the Federal Court of Justice confirmed that buyers of a diesel vehicle with "cheat software" are liable for damages of VW "in principle a requirement on payment of damages have", writes the ADAC. However, plaintiffs would go away empty-handed if they "only bought their car after the VW emissions scandal had been exposed", so the automobile association.
According to the Dusseldorf law firm Rogert& Ulbrich had already a "sensational judgement" of the Regional Court of Hildesheim from 17. January 2017 (Az.3 O 139/16) significantly expanded the circle of promising plaintiffs against the fraud formulated there: "This means that all those whose warranty rights are time-barred or who did not buy their vehicles from authorized dealers can now finally claim damages (repayment of the purchase price with offsetting of the compensation for use)." As the BGH has now ruled, however, there are a number of things to bear in mind — as is often the case when it comes to guarantees and warranties. For example, frequent drivers have bad cards and only a claim for reduced damages, since they "get something in return for the money they paid" would have, according to the judges. In addition, they concluded that in this case interest would not be justified either. Other claims are in the meantime statute of limitations.
Federal Minister of Justice wants to enforce longer warranties
At the beginning of 2021, the Federal Minister of Justice, Christuine Lambrecht (SPD), caused a stir when she called for longer warranty periods. "Consumers may rightly expect high-quality products to be usable in the long term", she said to dpa. The Federal Ministry of Justice has now presented a draft according to which the previously applicable warranty period is to be extended from two to three years.
Particularly with expensive goods such as "high-priced electrical appliances" the two years are "not appropriate", said Lambrecht. Instead, it proposes time limits that are based on the expected life of a product. The minister assumes that manufacturers will also benefit if they "develop particularly durable and repairable products". Lambrecht told dpa: "This would counteract a throwaway mentality and strengthen a modern, sustainable recycling economy." In addition, the Misterin plans to introduce an update obligation for sellers of digital products.
Highly complex issue
So there is a lot to consider when it comes to the subject of guarantee and warranty and a possible compensation for the customer. In the following, we explain the current legal situation with regard to complaints and summarize the differences between warranty and guarantee. Here we refer among other things to the remarks of the attorney Dr. Kevin Grau of the law firm GRAU Rechtsanwalte as well as Bea Brunen, legal assistant of the IT law firm from Munich. Finally, in a FAQ section, we answer other important questions from this complex of topics.
A warranty is a voluntary service provided by the manufacturer or the dealer to the customer.
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Warranty
The warranty (= liability for defects, warranty for defects; English. warranty) describes, according to Kevin Grau, the legal consequences and legal claims of the buyer in the context of a sales contract, if the seller has delivered defective goods or objects.
Warranty in this context means The seller guarantees that the sold item is free of material defects and defects of title. Therefore, the seller is liable for all defects that already existed at the time of sale – even for those defects that only become noticeable later, as clearly described by attorney Dr. Kevin Grau from the law firm GRAU Rechtsanwalte in Wiesbaden, Germany. Bea Brunen adds: "In a sales contract, the seller has the duty to hand over faultless goods to the buyer." This is also confirmed by the consumer center: "The warranty (‘Sachmangelhaftung’) is a legally regulated claim of the consumer against the seller, if a defective product is delivered."
According to Brunen, the cases in which a purchased item is defective are governed by sections 434 and 435 of the BGB. According to these regulations, a defect exists, for example, "if the purchased item does not have the contractually agreed quality, is not suitable for normal use or the installation has not been carried out properly".
The warranty period is according to § 438 BGB 24 months and can be shortened to twelve months in the case of used goods by general terms and conditions or agreement between both parties. However, it cannot be excluded by contract, Grau continued. Brunen adds: "An exception to this principle is possible in the sale of used goods if the seller is an entrepreneur and the buyer is a consumer." In this case, the statutory limitation period can be shortened to one year by individual contract or in general terms and conditions. The same applies, regardless of whether new or used goods are sold, in the context of pure B2B transactions.
In favor of a consumer During the first six months After delivery, it is assumed that the goods were already defective at the time of delivery, unless the seller can prove that the defect did not exist at the time of delivery. Brunen: "In the first six months after delivery of the purchased item, the customer therefore has very good cards to actually enforce his claims for defects against the seller." This is also confirmed by the consumer center: "It is legally presumed that a defect was already present at the time of purchase." The buyer does not need to prove that, for example, a couch or a computer was already defective or functionally impaired at the time of delivery. If the customer notices according to grey only later than six months after the purchase the defect, the burden of proof changes, d.h. Now he must prove that the object already had a defect at the time of delivery.
Roughly speaking: warranty is the responsibility of the dealer, warranty is the responsibility of the manufacturer.
Photo: Daniel Jedzura – shutterstock.com
The consequences of the material defect arise for the law of sale from § 437 BGB. If the item is defective the buyer shall be entitled to the following statutory rights:
– Claim for subsequent performance (§ 439 BGB),
– Right of withdrawal (§ 440; § 323; § 326 para. 5 BGB and the regulations mentioned there),
– Reduction (§ 441 BGB),
– claim for damages (§ 437 No. 3 BGB and the regulations mentioned there).
The supplementary performance is thereby the primary right. It is on the one hand by the delivery of a new thing (exchange, or technically: Subsequent delivery) or by the elimination of the defect (for example, repair, technical: Rectification) possible. The type of supplementary performance to be provided shall be determined in principle by the buyer and not by the seller; a contractual shifting of the right of choice is conceivable in principle, but not possible in the case of the purchase of consumer goods. According to Brunen, the buyer can also repair the defect himself and claim compensation for the necessary costs from the seller as a claim for damages (§ 437 Nr. 3 BGB).
The consumer advice center emphasizes another important point to be considered in the case of supplementary performance: In these cases, the seller must "bear all costs for transport, labor and materials". Customers could also demand an advance payment for transport or shipping costs. However, this does not apply to revocations of contracts for defect-free goods. In addition, the customer may decide whether the purchased goods should be repaired or exchanged. But: If it "incurs disproportionately high costs" the dealer is allowed to choose the type of supplementary performance refuse.
Dr. Kevin Grau, attorney at law from the law firm GRAU Rechtsanwalte in Wiesbaden: "Guarantee is not warranty!"
Photo: GRAU Attorneys at Law
Warranty
The warranty (engl. guarantee) is a voluntary and freely configurable service provided by a dealer or manufacturer to the customer (durability or functional promise) in addition to the statutory warranty obligation. In principle, according to Bea Brunen, there are three possibilities for a warranty here:
the manufacturer (manufacturer’s warranty)
the seller (dealer warranty) or
be other persons involved or interested in the sale of the thing.
The guarantee promise refers mostly to the The ability of certain parts (or the entire device) to function over a certain period of time. In the case of a warranty, the condition of the goods at the time they are handed over to the customer is irrelevant, as they are guaranteed to be in working order for the period of time.
According to the consumer advice center, however, the consumer must be given a "guarantee on request" Warranty document in text form be handed over, in which he will find the exact warranty conditions such as details of the guarantor, the length and content of the warranty". Many manufacturers would also" their warranties limit in many ways.". So they would often"only certain parts or features of an item, for example the drive of the computer or the rusting through of the car body" concern. It is also common that in the case of a defect only spare parts are covered by the warranty. The wage for the installation of the parts would then have to be paid by the buyer. According to the consumer advice center, other manufacturers "only provide a warranty for spare parts that are not subject to wear and tear".
From a warranty often only certain parts are concerned like the disk drive in a computer.
Photo: Daniel Krason – shutterstock.com
A warranty promise may not reduce or replace the statutory warranty (24 months) in any case, but always applies only alongside or in addition to the statutory warranty.
Consumers often confuse the terms "warranty" and "guarantee" and "warranty", which have different meanings. Roughly it can be stated that warranty is a matter for the dealer and guarantee is a matter for the manufacturer. While dealers are legally obligated to provide a warranty, manufacturers are free to guarantee their products, says attorney Dr. Kevin Gray.
Bea Brunen from IT-Recht Kanzlei adds another important point:"Without an appropriate warranty statement, there is no warranty claim." In addition, the statutory claims for defects would not be affected by the warranty (§ 443 para. 1 BGB) . However, the customer may assert both the normal claims for defects and the (extended) warranty claims, he said.
Brunen states that there are "considerable differences" There is a difference between warranty and guarantee, which traders should be aware of in order to be able to Responding correctly to customer claims To can. The terms "warranty" and "guarantee" are often confused, for example when the buyer insists on his "legal guarantee".