Under German law on the sale of goods, if a seller sells faulty goods a buyer can require the seller to bring supplementary performance. But there are some restrictions on the ambit of the buyer’s rights.
The sale of goods
Under § 437 of the German Civil Code (BGB), in a transaction for the sale of goods, a purchaser is given certain rights if the seller delivers faulty goods. One of these rights includes being able to require the seller to undertake supplementary performance in order to fulfil the original contractual obligations. This may include, for example, repairing the goods.
The buyer is generally at liberty to choose whether new goods are delivered or whether the faulty goods are repaired (§ 439(1) BGB). The seller, however, does has some protection. They can refuse the buyer’s choice if it would be disproportionally costly (§ 439(3) BGB).
In a recent case heard by Germany’s Federal Court of Justice (Bundesgerichtshof), the buyer had bought a car and complained that the automatic wing mirrors did not function correctly. As supplementary performance, the buyer demanded a replacement vehicle.
Initially the seller disputed the buyer’s claims, arguing that the wing mirrors did function. However, once the fault had been established by the court, the seller modified their argument against the chosen form of supplementary performance by claiming that it would be disproportionately costly.
The court ruled that the seller’s reluctance to deliver a new car was justified on the grounds that it would be too costly. In particular, the judges held that this argument was not precluded by the seller’s earlier contention that there had been no fault with the vehicle.
While consumers may defend themselves against taking delivery of faulty goods, they should remember that claims for replacement new products can be refused by the seller. This is especially the case where the cost of a replacement would be disproportionately high.