19. Oct 16

BGH: “unverzüglich” is an acceptable deadline for taking remedial action

If a purchased item is defective, the buyer can demand that subsequent remedial action be taken. According to a recent ruling of the Bundesgerichtshof (BGH), Germany’s Federal Court of Justice, “unverzüglich” (immediately) is an acceptable deadline in relation to this remedial work.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If the purchased item is defective, the buyer can set the seller a deadline for supplementary performance. If the latter nonetheless fails to comply, the buyer can then rescind the contract and demand compensation. In its ruling of July 13, 2016, the 8th Civil Panel of the Bundesgerichtshof, competent to hear cases concerning, inter alia, sale of goods law, held that it is acceptable for the purposes of setting a deadline for the buyer to make it clear by demanding immediate or prompt performance, or by using similar wording, that the seller has only a limited timeframe in which to render performance. The Court stated that a specific timeframe or date did not need to be indicated in doing so.

The case concerned a legal action brought by a married couple that had purchased a fitted kitchen valued at around 80,000 euros. After the kitchen’s construction was completed in mid-January of 2009, several material defects manifested themselves. The husband reported these to the seller and demanded that they be rectified “unverzüglich” (immediately). When further defects came to light, the couple requested that they also be repaired quickly in an email dated February 16, 2016. In a letter from March 11, 2009, the married couple laid out a final list of all of the defects and demanded that remedial work be carried out by March 27. Despite accepting this demand, the seller did not remedy the defects. The couple subsequently gave notice on March 31, 2009 that they were rescinding the purchase agreement and requested payment of damages. The Oberlandesgericht München (Higher Regional Court of Munich) dismissed the claim, ruling that the plaintiffs had failed to set an appropriate deadline for remedial work before rescinding the agreement. It went on to say that a deadline of four to six weeks would have been appropriate.

The BGH overturned this ruling, noting, in particular, that the email from February listed the defects across five pages. The request for “schnelle Nachbesserung” (quick remedial action) was said to be acceptable for the purposes of setting a deadline. The Court also held that the couple would have been entitled to rescind the agreement even without setting a deadline in advance, because the kind of supplementary performance available to them was unsuitable.

Lawyers who are versed in the fields of sales of goods law and commercial law can advise on all issue pertaining to purchase agreements.

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