The Federal Court of Justice has ruled that the directive-compliant interpretation of Section 439 para. 1 alternative 2 BGB ("delivery of a defect-free item"), mandated by the judgment of the European Court of Justice of June 16, 2011 (C-65/09, C-87/09 – Gebr. Weber GmbH/Jürgen Wittmer; Ingrid Putz/Medianess Electronics GmbH), is limited to consumer goods purchase contracts (b2c) and does not apply to purchase agreements between entrepreneurs (b2b) or between consumers (c2c).
The plaintiff, active in sports field construction, purchased EPDM granulate from a Polish producer from the defendant for the construction of artificial turf pitches in two municipalities. After installation by the plaintiff, it became apparent that the granulate supplied by the defendant was defective. The defendant supplied replacement granulate free of charge but refused to remove the defective granulate and install the replacement granulate. Consequently, the plaintiff had these works carried out by another company.
In its action, the plaintiff sought, among other things, payment of the costs it incurred for removal and installation. The Regional Court dismissed the action in this respect. The Higher Regional Court dismissed the plaintiff's appeal. The plaintiff's appeal against this decision was unsuccessful.
The VIII Civil Senate of the Federal Court of Justice, which is responsible among other things for sales law, ruled in favor of the plaintiff. Civil Senate of the Federal Court of Justice, which is responsible for matters including sales law, ruled that the ruling of the European Court of Justice on the scope of subsequent performance in the sale of consumer goods in the case of a replacement delivery has no effect on the contract of sale between entrepreneurs at issue here. According to the ruling of the European Court of Justice, in the case of a replacement delivery, the consumer is entitled against the business to have the business remove the defective item that was installed by the consumer for the intended purpose before the defect occurred and install the item delivered as a replacement or to bear the costs incurred for this. This applies, as the VIII. Civil Senate has explained, this only applies to the purchase contract concluded between a consumer and an entrepreneur (b2c; see BGH, judgment of December 21, 2011 - VIII ZR 70/08). In the case of purchase contracts between entrepreneurs (b2b) or between consumers (c2c), on the other hand, the removal of the defective item and the installation of the replacement item is not covered by the supplementary performance option "delivery of a defect-free item" (Section 439 (1) Alt. 2 BGB).
In business-to-business (B2B) transactions, it is therefore imperative that companies include provisions in their contracts and purchasing terms to ensure that suppliers are liable for removal and installation costs when delivering defective goods. If your contractual agreements do not contain such a provision, you should react immediately.
Please do not hesitate to contact us with any questions.
Judgment of the BGH of October 17, 2012 - VIII ZR 226/11
Previous instances:
Stuttgart Higher Regional Court - Judgment of June 8, 2011 - 4 U 34/11
Stuttgart Regional Court - Judgment of February 2, 2011 - 20 O 280/10
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de
