Need to adapt general terms and conditions clauses following changes to the law on the sale of goods as of 1 January 2022
One of the most important innovations in the law on the sale of goods is the change in the definition of material defects. Products are only to be deemed free of defects if they correspond to the subjective agreements of the parties and the objective quality requirements are met. The subjective and objective requirements for the defectiveness of a product are thus now of equal importance.
Need for adaptation of general terms and conditions for the sale of consumer goods
Negative agreements on quality must be agreed in accordance with the special prerequisites in § 476 I 2 Nos.1 and 2 of the Civil Code (new version). Prerequisite for a variant agreement on quality is that the entrepreneur must specifically inform the consumer in the product description that a feature of the goods varies from the objective quality and that the variation must have been expressly and separately agreed in the contract before the submission of the contractual declaration. Any variation from the objective condition can no longer be agreed implicitly by a corresponding provision in the GTCs, as was previously the case. Therefore, consent to the variation in quality through a pre-ticked box is no longer sufficient. On the other hand, it would be possible for the consumer to independently check a box on the website, so that the consumer consciously consents to the variation from the objective requirements of the quality.
Recommendation for action for companies
The new definition of a material defect has been applicable to all sale contracts since 1 January 22 and affects all companies operating in the B2C and B2B segments. Therefore, when concluding the sale contract, especially in e‑commerce, the consumer should agree to the variation by actively opting in if the product shows signs of use or is defective, for example. In addition, entrepreneurs should review their own products for compatibility with the new definition of defects and, in the course of this, adapt their general terms and conditions and sample contracts in such a way that no warranty or damage compensation claims arise. Otherwise, these claims could arise even if the product has the agreed quality. In addition, it is advisable to review contracts with suppliers and manufacturers and, if possible, to establish a concurrence of obligations towards customers. Likewise, the new provisions on the burden of proof, rectification of defects and It must be deadlines in the GTCs must be
In principle, a negative quality agreement is still possible. However, this can no longer be done in general terms and conditions. The stricter requirements for the sale of consumer goods must be taken into account. Entrepreneurs may elicit such a declaration, for example, in an online purchase by having a button or box on their website so that the consumer confirms it by clicking on it or, as the case may be, by other means. Implied consent is no longer possible.
You can find a condensed overview with recommendations for action when drafting contracts in the following PowerPoint presentation.