Within the context of this judgment issued by the European Court of Justice, a consumer in the context of a claim for subsequent performance against a contractor may require disassembly of the defective item as well as reinstallation of the non-defective item as part of the exchange. The contractor is free to decline performance of the disassembly and reinstallation. But then, the contractor must bear applicable costs of such performance.
The BGH held that this did not apply in the context of the relationship between two contractors but only to the relationship between consumers and contractors. Moreover, it would also not be possible to transfer these provisions in compliance with interpretations of the German Civil Code (BGB) to the purchase contracts between entrepreneurs, a possibility which would not stand in opposition to the decision of the European Court of Justice (ECJ).
Generally speaking, a buyer, in the event of a defect, should not be used to present the case of the defect as there are no legal provisions (in contrast to work and services contract law) for self-fulfillment. In Sales Law, the principle of primacy of subsequent performance applies via the seller for whom the possibility should exist to remedy existing deficiencies, possibly even at lower cost.
For a buyer who buys a defective item, it is important, therefore, to proceed properly from the very beginning in order to avoid being held responsible for costs. It is advisable, therefore, in such a case to seek advice from an attorney practicing in the area of civil law who can examine existing claims and plan further steps. It is in the best interest of contractors to consult with attorneys to draw up contracts in advance.
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Contact Michael Rainer
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GRP Rainer LLP
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