If there is a nasty surprise after the purchase and the goods are defective, everyone should know what to do. Did you know that the seller is obliged to replace the goods? The legal guarantee ensures that the customer has a right to working articles at all times.
Definition of warranty – what is it actually?
According to digopaul, warranty is also called guarantee for defects and liability for defects, which already clarifies the actual purpose of this regulation. More precisely, this means that you have an obligation towards your customers to offer faultless goods or a faultless service. Otherwise, you have to correct the defects at no extra charge up to two years after the delivery of the goods or after the service has been performed.
What is the difference between warranty and guarantee?
Although warranty and guarantee are often used interchangeably by laypeople, you should not confuse the two terms. While the warranty is required by law and limited to 24 months or two years, the warranty is a voluntary service on the part of the manufacturer. This can determine the scope as well as the type and duration of the guarantee.
The difference – explained quickly and easily
In this table the individual differences become clear again. It is important to know that, as the seller, you are obliged to provide a warranty, but not a guarantee.
|Two years or 24 months||Duration depends on the manufacturer|
|stipulated by law||is based on the manufacturer’s voluntary goodwill|
|The seller has a duty||the manufacturer himself has an obligation|
|Damage that the goods had from the start||The company itself licks the type of defects covered|
|If a private individual purchases used goods, he is no longer entitled to a warranty||The residual guarantee from the date of the first purchase continues to exist|
|Money back, repair or complete replacement||mostly only repair claim|
|Unrestricted entitlement (also to so-called wear parts)||The scope of the guarantee is determined by the manufacturer|
So if you are only a seller, you do not have to be liable for the guarantee but for the warranty. If you produce a product yourself, you set up your own warranty regulations, but you don’t have to worry about the warranty.
Can you refer to the warranty despite the guarantee?
In principle, your customers can invoke the warranty despite the guarantee. In most cases, this even makes sense, because while the warranty includes all parts of a machine or a product (including so-called wear parts!), The warranty depends on the conditions set by the manufacturer.
Duration of the warranty period
The duration of the warranty obligation can vary under certain circumstances. Depending on the type of goods and the sales procedure, the following rules apply:
- The normal warranty period runs for two years (24 months) from the date of receipt of the goods or services.
- Your customers are entitled to a guarantee for 3 years if you knowingly concealed a defect when selling.
- There is a 5-year guarantee on structures and building materials in accordance with the German Civil Code (BGB)
- 30 years after the purchase, your customers have a warranty claim if it is a so-called right of surrender by a third party.
Is there a burden of proof?
Yes, there is definitely a burden of proof. However, this changes depending on the time of your customer’s complaint .
Up to six months after the purchase, the burden of proof lies with you as the seller. This means that you have to prove that the product was perfectly fine on the day of sale.
After the six months have expired, the customer must prove that the defect already existed at the time of purchase. In addition, a comprehensible justification must be provided as to why the customer waited so long with the complaint.
Consequences of a material defect
A material defect is usually so serious that the product cannot be used. As a result, a complaint results directly from the manufacturer (the guarantee) or from the seller (the guarantee).
German warranty law
The German warranty law regulates the type of claims that the buyer has against the seller. In principle, there is always a right to supplementary performance, which means that the seller must be able to remedy the defect. This is done by making a complaint by the buyer and setting a deadline at the same time. As a rule, 14 days are allowed for subsequent performance.
Overview of warranty rights
|§§ 437 No. 1, 439 BGB||Supplementary performanceYour customer can request the repair or a subsequent delivery. If this supplementary performance is associated with disproportionately high costs for you as the seller, you can refuse it.|
|§§ 437 No. 2, 440, 323, 326 BGB||Withdrawal from the purchase contractThe buyer can withdraw from the purchase. He does not have to return the goods, nor is the seller entitled to payment or has to reimburse it.|
|§§ 437 No. 2, 441 BGB||Reduction of the purchase priceYour customer can claim back the loss of value caused by the defect.|
|§§ 437 No. 3, 440, 280, 281 BGB||damagesCompensation for damages can be requested on the part of the buyer in addition to the other claims for defects. The reimbursable costs include repair costs, reduced value and the replacement of damage to other goods caused by the defect.|
What is meant by defect / material defect?
In order to be considered defective, a few basic requirements must be met. A purchased item is defective under the following circumstances:
- the agreed quality of the goods does not apply (example: the lawnmower does not achieve the specified number of revolutions of the blades)
- the goods are unusable for the advertised use (example: the lawnmower does not cut the lawn cleanly)
- the goods are not suitable for the actual use (example: the smoke detector already hits with simple cigarette smoke)
- the goods do not meet the quality that was publicly advertised (example: the new car uses significantly more gasoline than expected)
- the purchased goods are incorrectly assembled by the seller or his employee
- the installation or operating instructions are incorrect, which means that there are restrictions in use.
- something other than what is ordered is being delivered
- a different amount is included in the scope of delivery than originally ordered
- There is a legal defect in a purchased item (example: after a property purchase, a land charge or usufruct of a third party emerges)
Warranty obligation in other countries
Due to the constant globalization and online trading of goods, deliveries from abroad are also becoming increasingly common. Within the European Union, the normal warranty regulations apply.
If it is a non-EU country, the laws there regarding guarantee and warranty apply. In most cases, however, these correspond to the European guidelines. For example, there is a two-year warranty right in both China and the USA.
When can you withdraw from the purchase?
For many disappointed consumers, the most important question is how to withdraw from a purchase. Who would also like to have a discussion with the seller and then have to wait weeks for a new device? It is important to know, however, that the seller initially has a right to subsequent performance. As a seller or service provider, you can correct the error before your customer can completely withdraw from the contract.
Withdrawal from the sale
Withdrawal from the purchase means that the contract will be terminated retrospectively. This form of guarantee is regulated by paragraphs §§ 437 No. 2, 440, 323, 326 BGB. As a seller, you are not entitled to payment. In return, the buyer may not demand the goods. Deliveries and services that have already been provided are – if possible – to be returned.
Reduction in purchase price
The reduction of the purchase price is regulated according to §§ 437 No. 2, 441 BGB. Accordingly, in a corresponding warranty case, the buyer may reduce the purchase price by the amount of damage caused by the defect. If both parties cannot agree on an amount, the court will take this decision.
What do you have to consider?
There must be a valid reason for the withdrawal from the sales contract to be valid. The following scenarios come into question:
- As a seller or service provider, you cannot deliver or complete the goods in the agreed period.
- The goods are defective according to the criteria already described.
- The deadline for rectification has expired or you have refused the subsequent delivery.
- The second attempt at improvement also failed
The withdrawal from the sales contract should always be recorded in writing. You have to reimburse payments already made by the customer.
What does the VOB / B guarantee mean?
The VOB / B (VOB procurement and contract regulations for construction works – Part B: General contractual conditions for the execution of construction works) regulates all claims to warranties in construction contracts. This area of generating goods is of particular importance due to the size of the investments .
According to VOB / B, the builder is always entitled to a warranty if the following defects are present:
- a material defect in the true sense of the word
- a legal deficiency
In the case of construction projects, it is usually about the non-fulfillment of the characteristics discussed or the poor quality of the work.
The exemption from liability, which is defined in § 13 No. 3 VOB / B, is an exception. Accordingly, as a property developer, you are exempt from the warranty obligation if the following facts apply:
- Defects due to the description of services
The property developer is released from the warranty if defects in the end product occur due to a lack of communication or incorrect communication on the part of the client.
- Deficiency due to instructions from the client
Sounds a bit crazy at first, but it actually happens in practice: The client instructs the contractor, despite detailed advice, to create the end product according to his specifications. The client does not care that a high level of damage can occur.
- Defects due to materials and components supplied by the client.
For this, you only have to be able to prove that the goods are of inferior quality that the client makes available to you. You are also exempt from liability if the client instructs you (despite expressed concerns on your part) to use the wrong materials.
- Deficiency due to advance payments by other companies
If the building structure is damaged by an advance payment by another company, you are not liable, but the previous contractor.
What warranty applies to the construction?
In contrast to the BGB, the VOB / B does not provide for a withdrawal from the purchase contract. The client always has the duty to repair the damage that has occurred. The contractor must bear all costs of the rework. Claims for damages on the part of the client are possible.
What are the statute of limitations for construction?
If you agree with the client on a contractual basis in accordance with VOB / B, the general warranty period is four years. There are deviations in electronic systems that require maintenance. Here the limitation period for the warranty is two years. The processing of exhaust gas insulation is subject to a period of just one year.
If it turns out that the contractor has deliberately concealed a defect, the client is entitled to a warranty for 30 years after the acceptance of the building.
The warranty when buying a car
The warranty for car purchases is two years. However, when buying a car, make sure that only purchases from commercial providers are subject to statutory regulations.
Buy from the dealer
When buying a used or new car from the dealer, the statutory provisions regarding the warranty apply. As with services and smaller products, the buyer has a statutory right to the delivery of faultless goods. The period is two years. All components of the car are included (e.g. engine, bumper, seat heating, etc.)
If you sell your car as a private person, you are not obliged to provide a warranty. The purchase contract is and remains valid even in the event of a defect, provided that it has not been concealed through malicious deception.
Guarantee for digital content
If you are an entrepreneur in the digital market, you are also obliged here by the new EU regulations to deliver flawless (digital) goods. According to the new Art. 11 Para. 2 Digital-RL, the customer’s warranty right is extended from six months to a total of two years. The burden of proof lies with the provider for one year (twelve months). Only after the period of one year does your customer have to prove that the delivered content was defective from the start.
According to Art 14, the consumer has the right to supplementary performance, price reduction and termination. This also applies if the content has not been made available.
If you are in the position of seller or service provider, you are responsible for delivering a flawless product or service. If your customer discovers defects, he can request a corresponding supplementary performance up to two years after the conclusion of the purchase contract. Complete withdrawal from the purchase contract and payment of damages are also possible.
Under certain conditions, however, you are exempt from the warranty obligation. For example, if your customer instructs you to install these goods despite prior notification of a material defect. The warranty is regulated in both the VOB / B and the BGB.