The Federal Supreme Court (Bundesgerichtshof, BGH) has ruled that in the sale of consumer goods (§ 474 para. 1 sentence 1 BGB) the seller cannot demand compensation from the consumer for the use of the initially delivered object of sale in the case of a replacement delivery for defective goods, contrary to the wording of the law (§ 439 para. 4, § 346 para. 1, para. 2 no. 1 BGB). This further development of the law in conformity with the Directive is necessary because an obligation of the consumer to pay compensation for the use is not compatible with Art. 3 of the European Consumer Sales Directive.
In the summer of 2002, a consumer had bought a "cooker set" from the defendant, a mail-order company, at a price of € 524.90. The consumer was not satisfied with the price. In January 2004, the customer noticed that the enamel layer in the oven had peeled off. As it was not possible to repair the appliance, the defendant replaced the oven. She charged about 70 € for the use of the originally delivered appliance, which the buyer paid. The plaintiff (Bundesverband der Verbraucherzentralen und Verbraucherverbände e.V.) demands repayment of this amount from the defendant on the basis of an authorisation by the buyer. Furthermore, he demands that the defendant refrain from demanding payments from consumers for the use of the goods initially delivered in connection with the delivery of goods as a replacement for defective objects of purchase.
The Regional Court granted the claim for payment and dismissed the claim for injunctive relief. The Higher Regional Court dismissed the appeals of both parties. Both parties have appealed against this decision. The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales. The Federal Court of Justice's VIII Civil Senate, which is also responsible for the law of sales, dismissed the defendant's appeal, by which the defendant sought dismissal of the action also with regard to the claim for repayment. On the other hand, it allowed the plaintiff's appeal, with which the plaintiff continued to pursue its application for injunctive relief.
Initially, the Federal Court of Justice had stayed the proceedings by order of 16 August 2006 and referred the question to the Court of Justice of the European Communities for a preliminary ruling under Article 234 of the EC Treaty as to whether the provision of § 439 (4) of the German Civil Code is in conformity with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ No. L 171/12 of 7 July 1999, Consumer Sales Directive) (Press Release No. 118/2006).
The Court of Justice of the European Communities ruled on this point in its judgment of 17 April 2008, answering the question referred as follows: "Article 3 of Directive 1999/44/EC must be interpreted as precluding national legislation which, where the seller has supplied a consumer good which is not in conformity with the contract, allows him to require the consumer to pay compensation for the use of the consumer good which is not in conformity with the contract until it is replaced by a new consumer good."
The Federal Supreme Court has now ruled that § 439 (4) BGB is to be applied restrictively in the case of a sale of consumer goods (§ 474 (1) sentence 1 BGB), contrary to its wording. The provisions on rescission (§§ 346 to 348 BGB) referred to in § 439 (4) BGB only apply to the return of the defective item itself; in the case of a sale of consumer goods, however, they do not lead to a claim by the seller for compensation for the use of the defective item.
This restriction is necessary because, according to the decision of the Court of Justice of the European Communities, an obligation of the buyer to pay compensation for use is not compatible with Art. 3 of the Consumer Sales Directive. The national courts are bound by this decision. They are also obliged to interpret national law as far as possible in accordance with the wording and purpose of the Directive, making full use of the margin of appreciation granted to them by national law, in order to achieve the objective pursued by the Directive (interpretation in conformity with the Directive). This principle, which has been shaped by the case-law of the Court of Justice of the European Communities, requires national courts to do more than simply find the law within the wording of the law (interpretation in the narrower sense). The principle of interpretation in conformity with the directives also requires that national law, where necessary and possible, be developed in conformity with the directives. This results in the requirement of an interpretation of the law in conformity with the Directive by limiting § 439 (4) BGB to a content that is compatible with Art. 3 of the Directive.
This is in line with the principle that the courts are bound by law (Article 20 (3) of the Basic Law). It follows from the explanatory memorandum to the Act that there is an unplanned regulatory gap which is to be closed by judicial development of the law. The legislative material shows that the legislator intended to create a provision in conformity with the Directive, but mistakenly assumed that § 439.4 BGB was compatible with Art. 3 of the Consumer Sales Directive in the case of the sale of consumer goods (BT-Drs. 14/6040, p. 232 f.). This is confirmed by the fact that the legislature now wants to take the decision of the Court of Justice of the European Communities into account and bring about an implementation of the Directive in conformity with the Directive by amending the law (Resolution Recommendation and Report of the Committee on Legal Affairs of 15 October 2008, BT-Drs. 16/10607, pp. 4, 5 f.).
Judgment of the Federal Supreme Court of 26 November 2008 - VIII ZR 200/05
Previous instances: Nuremberg-Fürth Regional Court - Judgment of 22 April 2005 - 7 O 10714/04;Nuremberg Higher Regional Court - Judgment of 23 August 2005 - 3 U 991/05 Decision of 16 August 2006 - VIII ZR 200/05 (published, inter alia, in NJW 2006, 3200); ECJ, Judgment of 17 April 2008, Case C-404/06 - Quelle AG v. Bundesverband der Verbraucherzentralen und Verbraucherverbände e.V. (published inter alia in NJW 2008, 1433)
Source: Press release of the BGB No. 217/2008 of 26 November 2008
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)