The Federal Supreme Court has ruled that the interpretation of Section 439(1) Alt. 2 BGB ("delivery of a defect-free item") is limited to the contract for the sale of consumer goods (b2c) and does not apply to sales contracts between entrepreneurs (b2b) or between consumers (c2c).
The plaintiff, active in the construction of sports fields, purchased EPDM granulate from a Polish producer from the defendant for the construction of artificial turf fields in two municipalities. After installation by the plaintiff, it turned out 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. The plaintiff then had this work 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 dealings (b2b), it is therefore advisable for entrepreneurs to include appropriate provisions in their contracts and terms and conditions of purchase that ensure that the supplier must also reimburse the removal and installation costs in the event of delivery of a defective item. If your contractual provisions do not contain such an agreement, you should react immediately.
Please do not hesitate to contact us if you have 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 BGH
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
