Rever­sal of the bur­den of pro­of exten­ded: what sel­lers should know.

In accordance with the pro­vi­si­ons of Direc­ti­ve 2019/771/EU on cer­tain aspects con­cer­ning con­tracts for the sale of goods, the peri­od for rever­sing the bur­den of pro­of pur­su­ant to § 477 of the Ger­man Civil Code is to be exten­ded by one year in the fore­seeable future for sales of con­su­mer goods. This has tan­gi­ble con­se­quen­ces for buy­ers and sellers

The rever­sal of the bur­den of proof

If an item is defec­ti­ve, buy­ers can theo­re­ti­cal­ly make use of their war­ran­ty rights in Ger­ma­ny for two years after deli­very of the purcha­sed item, i.e. in par­ti­cu­lar demand sub­se­quent per­for­mance. This pre­sup­po­ses, howe­ver, that the buy­er can pro­ve that the item was defec­ti­ve at the time risk was transferred.

A spe­cial fea­ture appli­es if the buy­er is a con­su­mer, sin­ce § 477 BGB sti­pu­la­tes a six-month rever­sal of the bur­den of pro­of for sales of con­su­mer goods. This means that the buy­er of an alle­gedly defec­ti­ve item does not have to pro­ve within the first six months that the item was defec­ti­ve when it was deli­ver­ed to the buy­er; this is sim­ply pre­su­med by law. The sel­ler can in prin­ci­ple rebut this legal presumption.

Sin­ce the decis­i­on of the Ger­man Fede­ral Supre­me Court in 2016 at the latest, it has also been clear that this pre­sump­ti­ve effect is to be unders­tood very broad­ly and extends bey­ond the exis­tence of a basic defect at the time of the trans­fer of risk to the cau­sal rela­ti­on bet­ween the basic defect and a con­se­quen­ti­al defect that beco­mes appa­rent within the first six months after the trans­fer of risk. Con­sider the case of a car that has a mate­ri­al (basic) defect, as a result of which a short cir­cuit occurs, caus­ing the car to burn out com­ple­te­ly (con­se­quen­ti­al defect).

After expiry of the six-month peri­od, the buy­er must again pro­ve that the item was alre­a­dy defec­ti­ve at the time of the trans­fer of risk. In prac­ti­ce, howe­ver, this regu­lar­ly pres­ents the buy­er with con­sidera­ble dif­fi­cul­ties of pro­of, for exam­p­le becau­se sel­lers gene­ral­ly cla­im that the buy­er cau­sed the defect after deli­very through impro­per hand­ling or care. Not least for eco­no­mic reasons, buy­ers the­r­e­fo­re gene­ral­ly refrain from asser­ting their claims after six months have elapsed.

The pro­blem is now being fur­ther alle­via­ted: Direc­ti­ve (EU) 2019/771 on cer­tain aspects con­cer­ning con­tracts for the sale of goods, which has alre­a­dy ente­red into force, pro­vi­des for the rever­sal of the bur­den of pro­of in favour of con­su­mers to be exten­ded to at least one year. In prin­ci­ple, Mem­ber Sta­tes are also free to rever­se the bur­den of pro­of even for a peri­od of two years.

Ger­man legis­la­tors are now requi­red to trans­po­se the requi­re­ments of the Direc­ti­ve into natio­nal law. This will pre­su­ma­b­ly take place within the frame­work of § 477 BGB. The trans­po­si­ti­on dead­line expi­res after 1 July 2021, thus during this legis­la­ti­ve period.

Prac­ti­cal tips

Trad­ers should prepa­re for the upco­ming legis­la­ti­ve chan­ge. As signi­fi­cant growth can be expec­ted in defect-related com­plaints, stra­te­gies should be con­side­red ear­ly on and the resul­ting addi­tio­nal cos­ts should be inte­gra­ted into cal­cu­la­ti­ons. In addi­ti­on, con­trac­tu­al pro­vi­si­ons should be tes­ted in due time, as it is not easy to devia­te from legal requi­re­ments in B2C trade in particular.


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