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.

[September 2019]