product liability
product liability
If the assembly instruction is unduly or not understandable, the product as a whole subsists a defect. As such, any person who wants to set up
furniture may rely upon the correctness and comprehensibility of the provided instruction plan.
Beginning on 1/1/2002, the law of obligations modernization bill will effect serious changes
in the areas of the law of limitations, general law of obligations and sales contract law. It will
futhermore introduce several changes that will result in greater consumer protection.
Sales Law
In sales law, key importance is assigned to the concept of the defect as a prerequisite for
warrantly claims. This concept of the defect has been clearly expanded in favor of the buyer.
Thus, starting on 1/1/2002, not only faulty goods are considered defective but also the
undershipment of oterhwise nondefective goods as well as faulty assembly instructions (so
called IKEA clause).
Furthermore, the seller will have to be bound by public statements about the goods, in
particular by promotional claims, insofar as it emerges that such statements are not true. In a
dispute over a defect, it has previously been the responsibility of the buyer to prove that the
cited defect was already present at the time of purchase. The bill will turn this around: if the
defect appears during the first 6 months following delivery of the item, it will be assumed in
the buyer's favor that the defect had already been present since delivery. It is then the
responsibility of the entrepreneur to disprove this.
Many GTCs make warranty provisions subject to the buyer's duty to examine the product and
give timely notice of any defects pursuant to §§ 377 and 378 of the HGB has been rendered
invalid by the law of obligations modernization bill.
In the presence of a defect, the new law gives the buyer the following rights:
First of all, the so-called right of subsequent fulfillment applies, whereby the buyer has the
choice of whether the seller should repair or replace the item. This is already provided for in
many current GTCs, but often with the seller having the right to decide whether to repair or
replace. This is no longer compatible with the new law, which expressly accords the buyer
and not the seller the right to choose.
After two unsuccessful attempts to repair or replace, the buyer may either reduce the purchase
price or withdraw from the contract. This applies irrespective of whether the seller is at fault
for the defect or the unsuccessful subsequent fulfillment. The right of cancellation no longer
exists in this form. If the buyer withdraws from the contract, he also has an additional claim to
damage compensation if the seller is quilty of a culpable violation of his obligations.
source: law2b.de
