What does lack

Liability for material defects

Purchase contract

1. Term: Legal consequence after a poor performance offered by the debtor, as a special form of performance disruptions (other forms of performance disruptions are impossibility and default). Liability takes effect after the risk has passed (§§ 434, 437–445 BGB). It applies in addition to the rights from a guarantee (§ 443 I BGB). In the case of liability for material defects, the seller is responsible for ensuring that the purchased item does not have any material defects when the risk passes.

2. To shape: a) Agreement: Such a defect exists if the item does not have the agreed quality.

b) Subsidiary cases: Insofar as the quality has not been agreed, the item is free of material defects if it is
(1) is suitable for the use stipulated in the contract or
(2) if it is suitable for normal use and has a quality that is normal for items of the same type and which the buyer can expect depending on the type of item. According to the condition
(2) Also include properties that the buyer can expect according to the public statements of the seller, the manufacturer or his assistant, especially in advertising or when labeling certain properties.

c) Assembly: There is also a material defect,
(1) if the agreed assembly is carried out improperly by the seller or his vicarious agents or
(2) if the assembly instructions are inadequate and the item cannot therefore be assembled correctly.

d) Aliud and minus delivery: It is the same as a material defect if the seller delivers another item (Aliud delivery) or a quantity that is too small.

3. Buyer's Rights (Section 437 BGB): In the event of a material defect, the buyer has the following rights: a) Subsequent performance (obligation to rectify or make subsequent delivery at the buyer's choice, depending on the purchase of a piece or a class of goods)

b) Withdrawal from the contract if a reasonable deadline has been set unsuccessfully for supplementary performance (rejection) or supplementary performance fails (Section 440 BGB).

c) Reduction of the purchase price instead of withdrawal.

d) In the event of negligence, (simple) compensation or compensation instead of performance, if a reasonable deadline has been set unsuccessfully for supplementary performance or supplementary performance fails (Section 440 BGB).

e) Reimbursement of expenses instead of compensation instead of performance.

4. Loss of rights: The buyer who accepts an item with knowledge of the defect loses his rights (§ 442 I BGB).

5. Disclaimer: The contractual exclusion of liability for material defects is null and void if the seller fraudulently conceals the defect or if he has assumed a quality guarantee (guarantee) (§ 444 BGB). A number of clauses in general terms and conditions (GTC) (e.g. exclusion and referral to third parties, restriction to supplementary performance, transferring the costs of supplementary performance to the buyer) are also void according to § 309 No. 8 BGB. When purchasing consumer goods, agreements that are detrimental to the consumer are ineffective in almost all cases (see for more details §§ 474 ff. BGB).

Work contract

Since the reform of the law of obligations, liability for material defects in sales and work contracts has largely been the same. Some other innovations have been in effect in the law on contracts for work and services since January 1, 2018, cf.

1. Rights of the work ordering party (§ 634 BGB): a) Supplementary performance (obligation to rework or obligation to produce a new work at the option of the entrepreneur).

b) Self-rectification of defects by the work purchaser and reimbursement of expenses after expiry of an unsuccessful deadline.

c) Withdrawal from the contract.

d) Reduction of the work remuneration instead of withdrawal.

e) in the event of negligence, (simple) compensation or compensation instead of performance.

f) reimbursement of expenses in the event of negligence.

2. Loss of rights: The customer who accepts the work in knowledge of the defect (acceptance) loses his rights if he does not reserve them (§ 640 III BGB).

3. Disclaimer: As with the sales contract (§ 639 BGB).

rental contract

1. Term: In the case of liability for material defects, the landlord is responsible for ensuring that the rented item is currently there is no defect attached to the transfer to the tenant or during the rental period that invalidates or reduces the suitability for use in accordance with the contract.

2. Tenant Rights (Sections 536, 536a, 569 BGB): a) Supplementary performance (maintenance obligation through cosmetic repairs and maintenance repairs).

b) Reduction of the rent in the event of at least a significant reduction in usability, exemption from rent if usability is canceled.

c) Compensation for damages in the event of at least a significant reduction in usability, if the defect was already present when the contract was concluded or if it occurs through negligence or during the delay of the lessor.

d) The tenant can remedy the defect himself and reimbursement of expenses.

e) extraordinary termination without notice if the tenant cannot be expected to adhere to the contract.

3. Loss of rights: If the tenant already knows the defect when the contract is concluded, he loses his rights (§ 536b BGB); likewise if he accepts the matter without reserving his rights (§ 536b BGB).

4. Disclaimer: As in the case of the purchase contract (§ 536d BGB), in the case of residential rental, any agreement that is disadvantageous to the tenant is ineffective (§§ 536 IV, 569 V BGB).

See also statute of limitations.