A recurring cause of dispute: Who bears the burden of proof? (Photo: © onypix/123RF.com)
Read aloud:
November 2016
The Federal Court of Justice has issued a new ruling that is also important for tradespeople. It concerns the burden of proof in the case of defects.
Logical: In order to assert warranty rights, a Lack In practice, however, one must also to prove And that is not always easy. Here the law helps the consumer when buying: If the defect is apparent within the first six months If a defect is discovered after the goods have been handed over, it is presumed that the defect was already present from the outset.
Until now, the cases were legally controversial, where the defect is clearly only after handover has appeared, but the actual cause may have already existed before (so-called more latent Shortage).
The Bundesgerichtshof (BGH) has now clarified: The defect is within the first six months generally assumed and the seller must prove the opposite (Judgment of 12 October 2016, Ref. VIII ZR 103 / 15) That means: The Seller . to provethat the goods at the time of handover defect-free was if a defect becomes apparent within six months. This applies even if the cause is unclear and could also be due to misconduct on the part of the consumer. Previously, the Federal Court of Justice (BGH) required the consumer to prove that the cause of the defect already existed upon delivery of the item. It has now changed this ruling.
What impact does this have on craft workshopsFirst, it should be noted that the ruling directly affects only purchase contracts. Sell However, if craft businesses supply materials to their private customers, the new burden of proof also applies to them. However, in a business-to-business (B2B) relationship, i.e., a purchase from a commercial supplier, the general burden of proof continues to apply: The craftsman, as the buyer, must prove the defect.
Operations management
Operations management
The Chambers of Crafts in Germany - Trier Chamber of Crafts
The ruling also has an impact on cases in which craftsmen Material use that the Customer purchased himself The new case law favors private customers by placing the burden of proof on the retailer. This means that the defect is presumed to have occurred within the first six months.
This is where the as yet unresolved problem of removal and reinstallation costs comes into play for the craftsman. current legal situation The craftsman is left with them, but the new Bill of the Federal Government provides for a compromise – the first reading in the Bundestag is coming up soon.
The following overview is intended to clarify the constellations:
|
| Deficiency within the first 6 months | Deficiency from month 7 | Costs |
| Consumer-customer buys material from the dealer and craftsman installs it | - Presumption that the material was already defective when it was handed over & seller must prove the opposite - if defects in the work of the craftsman are involved, no presumption applies. The customer reserves the right to accept defects upon acceptance. | Customer must demonstrate and prove that the material was defective upon delivery | The dealer must pay the cost of new material + the cost of dismantling and re-installation by the craftsman |
| Craftsman buys material from the dealer and installs it at the consumer customer | - no presumption; the craftsman must prove that the material was already defective upon handover | The dealer only has to reimburse the tradesman for the material costs. The tradesman is (still) responsible for the costs of removal and reinstallation. | |
Author: Attorney Anna Rehfeldt LL.M.
Newsletter
Write a comment