German sales law will be comprehensively reformed with effect from 01.01.2022. In doing so, the German legislator is implementing EU Directive 2019/771. The consequences are quite significant, as German sales law is being adapted to the digital world for the first time.
What will change?
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New concept of deficiency
First of all, a new concept of defect is enshrined in law within the framework of § 434 BGB. Previously, an item was free of material defects if it had the agreed quality at the time of the transfer of risk and was suitable for the contractually intended or usual use.
The new version now provides that an item is free of defects if it complies with the subjective and the objective requirements as well as the assembly requirements at the time of risk.
The object of sale meets the subjective requirements if it has the agreed quality and is suitable for the use provided for in the contract. The object meets the objective requirements if it is suitable for normal use and has a quality that is usual for objects of the same type. What is new is that in particular statements of the buyer in advertising or packaging information are to be taken into account. In addition, for the first time, the delivery of an item other than the contractually owed item is also considered a material defect. Up to now, subjective quality criteria took precedence over objective criteria. Now, subjective and objective quality criteria are to be of equal importance.
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Generally no agreement on inferior quality
Previously, when a defective or incomplete product was offered, this reduced quality became the agreed quality of the goods if the circumstance was pointed out in the item description. In simple terms, information about the defects or limited usability previously became the agreed quality. This changes in the new law on sales. It is only possible to deviate from the requirements of the objective requirement for a product to be free of defects or also the special requirements in the case of a "product with digital elements" according to § 475b para. 3 BGB n. F. under certain conditions.
It may therefore also be necessary to adapt product descriptions and online shops in order to reach a corresponding agreement.
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Extension of the presumption that a defective item was already defective at the time of purchase
The burden of proof regulation is extended. Consumer rights are hereby significantly strengthened. Previously, it was presumed that the purchased item was defective at the time of transfer of risk if it showed a material defect within six months after the transfer of risk.
What is new is that this presumption is now extended to one year.
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The buyer's warranty claims for defects shall also exist in the event of knowledge of the defect.
In addition, it is newly introduced that warranty claims for defects also exist in case of knowledge of the defect. Previously, the buyer's warranty rights were excluded if the buyer knew or should have known of the defect at the time of the conclusion of the contract and if the seller fraudulently concealed the defect or granted a guarantee. What is new is that this provision no longer applies to consumers. Consumers can thus assert their warranty rights even if they are aware of defects in the object of sale. However, the warranty for defects can be waived if the consumer is aware of the defect, for example in general terms and conditions.
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Updates must be provided free of charge for 2 years
For the first time, the new sales law is explicitly adapted to the digital world, such as the purchase of computers, software and smartphones.
What is new is that manufacturers of digital devices and software are obliged to offer updates within a period of two years from the handover of the device/software. Otherwise, there is a material defect. Thus, for the first time, there is a codified obligation to update.
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New contract type for "digital content
What is new is that in §§ 327 ff. BGB, a completely new type of contract is introduced for digital content. The regulations refer to consumer contracts that have as their object the provision of digital content or services against payment of a fee. Also included are consumer contracts in which the consumer posts personal data or undertakes to provide such data without paying a further price for the digital content.
What does the extensive change in the law mean for your company?
The effects of the change in the law are serious. Consumer protection is, for the most part, considerably tightened by the new law on sales.
What do you have to do?
We strongly recommend that you adapt your general terms and conditions (GTC) to the reform of the law on sales as of 01.01.2021. This is especially true if the business purpose of your company includes trading in software, computers and other digital content.
As a company, you are obliged to comply with the new legal requirements for all contracts from 01.01.2022. In order for your company to meet the new legal requirements, it is necessary to review and revise your general terms and conditions promptly and comprehensively.
There is therefore an urgent need for action for your company!
Contact us
We adapt your general terms and conditions and contracts to the current legal situation and make you fit for the future.
As the new regulations apply from 01.01.2021, haste is required.
GoldbergUllrich Lawyers 2021
Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)
