Warranty in case of defective purchase object and recourse

Judgement on extension of the reversal of the burden of proof following purchase of consumer goods also significant for the B2B sector

Presumption of conformity in Section 477 of the German Civil Code (BGB) also covers causal defect


Until fairly recently, the presumption that held in the context of purchases of consumer goods – only effective from a temporal point of view – , was that a material defect which came to light within six months of delivery of the thing already existed at the time of the passage of risk. But the presumption did not go as far as to cover the existence of the defect per se. This caused problems in cases where it was not clear whether or not a defect existed at all when the risk passed over. This became relevant in cases where the thing suffered damage within the first six months (so-called symptom of a defect), said damage quite obviously not having existed at the time of the passage of risk, and there were uncertainties as to the existence of the causal defect which may have caused the symptom to come to light. Until the end of 2016 there was no presumption that this causal defect existed at the time of delivery. Consequently, it was the consumer who was under obligation to prove that it did. 

A judgement by the Federal High Court of Justice (BGH) (BGH 12 October 2016 – VIII ZR 103/15), which was also occupying itself with the interpretation of the directive on the sale of consumer goods as a reaction to a judgement made by the European Court of Justice (ECJ) (ECJ 4 June 2015 – C-497/13), has led to an extension of this provision governing the shift of the burden of proof in favour of the consumer. A consequence of the judgement is that the presumption rule is applied not only from a temporal point of view. All the consumer has had to do as regards the existence of the causal defect since the passing of the judgement is prove that the thing does not meet the standards which it would be reasonable to expect under the contract. So it is now sufficient to show that a defect of some kind has manifested itself – even if it did not yet exist at the time of the passage of risk. 


Even if this adjudication somehow fails to give the impression of being brand new, recent judgements (cf. for example by the OLG Munich, judgement of 26 January 2018 – 3 U 3421/16) show how important it is in practice for the legal position of the purchaser. The judgement by the ECJ on which it is based applies to the position of consumers in the whole of the EU. 

In practice, the vendor is as a rule likely to prefer to acknowledge the claim before he starts spending money and time trying to prove that the causal defect existed at the time of the passage of risk. Whether or not, he or she can cater to this liability risk from the very beginning by factoring it into the price of the products. 

Practical tip

The vendor can have recourse to his or her supplier (if the latter is an entrepreneur); this recourse can go right back along the supply chain to the manufacturer. What this actually means in the B2B sector is that the consumer's claim can be 'passed back along the line', and that the respective commercial purchaser need not end up being stuck with the product about which the complaint has been made. So knowledge of this legal position is very important for commercial distributors.

[March 7th, 2018]