When is there a material defect (434 BGB)?
When is it a material defect?
A material defect exists if the item does not meet the subjective requirements. An item does not meet the subjective requirements if it: — does not have the agreed quality at the time of the transfer of risk (this also includes the agreed quantity; if too little is delivered, there is a defect).
What are material defect examples?
This can be, for example, the assembly of a kitchen or pieces of furniture, the installation of software or the installation of spare parts and systems. The assembly is improper if it has been carried out differently than agreed. There is then a material defect.
When is something defective?
A material defect also exists for an item intended for assembly if the assembly instructions are defective, unless the item was assembled correctly. (3) It is equivalent to a material defect if the seller delivers a different item or an insufficient quantity.
What are material defects BGB?
According to Section 434 I Sentence 1 of the German Civil Code, there is a material defect if, at the time of the transfer of risk, the actual condition of the item sold deviates to the buyer’s disadvantage from the contractually agreed target condition.
The new material defect according to § 434 BGB simply explained!
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How do you check a material defect?
Existence of a defect at the time of the transfer of risk
According to § 434 I 1 BGB, there is a material defect if the item does not have the agreed quality. The agreement in the contract alone is decisive for the existence of a material defect according to § 434 I 1 BGB; so-called subjective error concept.
How long can a material defect be claimed?
A statutory warranty period of 2 years applies to every purchase contract. If you buy as a private person from an entrepreneur, the liability for material defects is usually reduced to one year.
What are the 3 types of defects?
- Obvious defects: An open defect is immediately recognizable upon inspection.
- Hidden defect: A hidden defect is not immediately recognizable, but only shows up later.
- Defects fraudulently concealed: The seller is aware of the defect, but does not disclose it to the buyer.
Who bears the burden of proof for a material defect?
If the buyer is an entrepreneur himself, the burden of proof for the material defect lies with him. The commercial buyer must prove that the defect existed when the goods were handed over (so-called «passing of risk»). The point in time at which the item is handed over to the buyer is decisive.
When is there a defect in quality?
According to the legal assessments of § 434 BGB, there is a defect if the item either does not have the agreed quality, is not suitable for the contractually stipulated use or if the purchased item does not have the usual quality for such things and is not suitable for the usual …
What to do in the event of material defects?
If you assert a material defect, the seller first has the option of supplementary performance. As a buyer, you must ask the seller to do so. You have the option to choose between exchange and repair. It is advisable to set the seller a reasonable deadline.
Is liability for material defects the same as warranty?
The warranty is a liability for material defects, i.e. the seller is obliged to deliver goods or items to the buyer that are free of defects. If defective goods or items are delivered, the seller is liable for all defects that already existed at the time of delivery.
Who is liable for material defects?
In the case of liability for material defects, a seller, lessor or contractor is liable for the fact that the item sold, rented or manufactured does not have the agreed target quality.
What types of material defects can be distinguished?
Species. A distinction is made between open material defects, hidden defects and fraudulently concealed defects. An open defect must already exist when the item is handed over/accepted and must be recognizable to everyone.
What is a serious defect?
A significant defect is therefore usually already present if the effort to remedy the defect exceeds an amount of 5% of the purchase price.
How do I prove a deficiency after 6 months?
After the six months have expired, the burden of proof according to § 477 BGB is reversed. If defects occur, the consumer must now prove that there is a defect and that it was already present when the goods were handed over.
When does the reversal of the burden of proof not apply?
Restriction to Consumers
As in the old law, the reversal of the burden of proof only applies to trade between companies and consumers. This does not apply to B2B or C2C trade. This means that in B2B or C2C trade, the buyer always has to prove that there was a defect at the time of the transfer of risk.
In which cases does the burden of proof reverse?
Failure to inform the patient prior to the start of the specific diagnosis or treatment and lack of evidence. failure to collect findings. obviously incorrect treatment, i.e. gross treatment errors and also medication errors. Transmission of germs through infection in a manageable area.
How can one differentiate between material defects based on recognisability?
With regard to the recognizability of defects, a distinction is made between obvious defects (which can be recognized immediately), hidden defects (which only become apparent later) and fraudulently concealed defects (which the seller deliberately concealed).
When does a defect have to be reported?
According to the BGB/HGB, a hidden defect in movable objects must be reported within 24 months of delivery (cf. § 438 BGB).
When does a purchased item show a defect according to the German Civil Code?
In legal terms, a defect means that there is a deviation between the ACTUAL and the contractually agreed TARGET condition of an item. A defect is often present in purchase contracts (§ 434 f. BGB) and work contracts (§ 633 BGB). In legal terms, an explicit distinction is made between material and legal defects.
What does the liability for material defects cover?
What is meant by material defect liability? According to the BGB, liability for material defects guarantees the car buyer more security. It covers damage that already exists when the vehicle is handed over but only becomes apparent later.
What defects are covered under warranty?
However, a car purchase warranty only protects you against material defects, not against normal wear and tear of the components. Whether there is a material defect can often only be decided by an expert. Defects caused by signs of wear do not have to be remedied under the warranty.
What is the exclusion of liability for material defects?
If you do not want to be liable for defects when selling used items, you must exclude liability for defects. The correct wording is: “I exclude any liability for material defects. «
How long can you complain about hidden defects?
In the past, there was a 30-year limitation period for fraudulently concealed defects. Today, this period is three years from the end of the year when knowledge of the defect became known, but no more than ten years from acceptance.
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