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Remedying defects and shifting the burden of proof: BGH bolsters buyers’ rights

01-18-2017 01:25 PM CET | Politics, Law & Society

Press release from: GRP Rainer LLP

Remedying defects and shifting the burden of proof: BGH bolsters

The Bundesgerichtshof (BGH), Germany’s Federal Court of Justice, has strengthened the rights of buyers and consumers in two recent rulings in the event of defects occurring in the object of sale (Az.: VIII ZR 103/15 and VIII ZR 240/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Both cases before the Bundesgerichtshof concerned defects in used vehicles that did not appear until after the purchase was made. In the case of the proceedings with the reference VIII ZR 103/15, a defect occurred in the vehicle’s automatic gearbox. The buyer set the dealer a deadline for the purposes of remedying the defect, but to no avail. The consumer ultimately rescinded the purchase agreement and sued for repayment of the purchase price.

Unlike the courts of lower instance, which held that the buyer had not adduced sufficient evidence proving that the defect had been present at the time the purchase was made, the BGH ruled in his favour. The Karlsruhe judges took the view that the burden of proof lay with the seller. In doing so, the BGH expanded the scope for shifting the burden of proof pursuant to sec. 476 of the Bürgerliches Gesetzbuch (BGB) [German Civil Code] to the benefit of the consumer. The Court thus stated that it could be assumed that the defect had been present to some extent at the time the vehicle was purchased. It concluded that the dealer needed to demonstrate that the defect was not yet present at the time of the sale.

In the other case, the clutch pedal of a used car began to get stuck shortly after the vehicle was purchased, with the result that it needed to be returned to its initial position after being engaged. The buyer brought the vehicle to the dealer’s garage. However, the defect was not present during a test drive and the dealer therefore saw no reason to carry out repairs. Not long thereafter, the pedal began to get stuck again. Because the dealer had not indicated that it was prepared to carry out repairs, the buyer decided to rescind the purchase agreement.

The BGH held that the rescission of the purchase agreement had been justified, even without setting a deadline for performing remedial work. The Court went on to say that despite the fact that the defect was only present sporadically, it had a big impact on the vehicle’s roadworthiness. It was said that this kind of malfunction significantly increased the risk of an accident occurring. Thus, the dealer had not satisfied the consumer’s demand to remove the defect.

If disputes arise relating to a purchase agreement, lawyers who are versed in the fields of commercial law and sale of goods law can offer advice.

GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact Michael Rainer
Lawyer, Managing Partner

GRP Rainer LLP
Augustinerstraße 10
50667 Cologne

Phone: +49 221-27 22 75-0

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