AUTHOR: Madeleine Lasserre
COUNTRY: Germany
YEAR: 2022
Name of the act: Act regulating the sale of goods with digital elements and other aspects of sales contracts
Subject area: Implementation of the EU Directive concerning contracts for the sale of goods

Brief description of the contents of the act:

The amendment took effect on 01.01.2022 and concerns both, general sales law and consumer goods sales law. Within general sales law, it modifies the notion of material defects as contained in section 434 of the German civil code (referred to as “BGB” in the following). The modified provision requires the cumulative respect of (1.) the objective defect concept (based on the customary use or quality of the sales item), (2.) the subjective defect concept (referring to the use and quality of the item as intended under the contract) and, to the relevant extent, (3.) the requirements for the installation instructions (containing instructions for the assembly of prefabricated parts of sold goods). Moreover, the new law contains changes and clarifications regarding the content of the seller’s right to cure for “removal and installation” cases. These concern the question of who bears the costs for the installation and removal of goods that have been installed in a manner consistent with their nature and purpose before a lack of conformity became apparent (e.g. a defective flooring with tiles). In the law on the sale of consumer goods, the legal definition and thus the scope of application for contracts for the sale of consumer goods are expanded from movable items to all types of goods (thus including water, light, gas etc.). During one year after transfer of risk (as opposed to only six months under the old law), a defect is deemed to have already existed at that time, which is relevant for the statutory guarantee for defects (to be distinguished from an additional guarantee agreed by the parties). Furthermore, a new section on consumer goods with digital elements is introduced, adding an obligation to update pertinent digital devices and features in cases where such an obligation was agreed by the parties (in extension to the subjective defect concept) or where an update can be reasonably expected by the average buyer (extending the objective defect concept). The amendments also modify the right of withdrawal and the right to damages in that instead of setting a deadline, it is sufficient to inform the seller of the defect.
Comment:

The cumulative requirements of section 434 BGB supposedly suspend the primacy of the subjective concept of defect that was in place under the old sales law. The contracting parties can no longer by individual agreement deviate from the customary quality of an item as required by the objective defect concept. This renders negative agreements on quality in principle impossible. Nevertheless, according to section 434 para. 3 BGB, exceptions to this general rule exist for B2B contracts through individual agreements. Thus, the primacy of the subjective concept of defect continues to apply de facto. Parties can for example agree to sell a car as a “car with defects for home mechanics”, constituting a negative quality agreement. However, the situation is different for consumer contracts. Selling a car with objective defects without engaging one’s liability is only possible under the conditions of section 476 BGB, which limits the possibility of negative quality agreements to the detriment of the consumer. According to these conditions, the consumer needs to be specifically informed before making his contractual declaration that a certain characteristic of the sold good deviates from the objective requirements (e.g. that the car is not roadworthy); and the deviation needs to be expressly and separately agreed in the contract (“contractualisation du défaut”). The implementation of the new sales law thereby promotes the directive's objective of providing a high level of consumer protection.

Further readings: Hilber, BeckOK IT-Recht, § 434 BGB.
Act citation /year and number: Bundestag decision 30 June 2021 (BGBl. I, S. 2133) and decision 30 June 2021 (BGBl. I, S. 2123).
Enacted by German Bundestag

Official link to the text of the act: https://www.bmj.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/Bgbl_Regelung_des_Verkaufs_von_Sachen_mit_digitalen_Elementen.pdf;jsessionid=2F4800A16FD4D3056F96D609288F5482.2_cid334?__blob=publicationFile&v=2