What shortcomings do you have
Federal Ministry of Justice and Consumer Protection
The seller is obliged to hand over the purchased goods free of defects to the buyer. If he does not do this, you are entitled to a guarantee from the seller.
Tarek is annoyed: He bought a new smartphone three months ago and now the touch-sensitive display no longer reacts to his inputs. Since the screen has stopped working, the phone is no longer suitable for its normal use, so there is a defect.
In addition to the statutory warranty, consumers often also have a right to a guarantee. A guarantee can be given by the seller or by the manufacturer. Manufacturer guarantees are common, especially for electronic goods such as smartphones. But also sellers, especially larger providers, are increasingly assuming guarantees. Seller guarantees are not infrequently offered for a separate fee. The guarantee is not limited by the guarantee. Mr. Zimmer could, for example, decide for himself whether he should send his defective smartphone to the manufacturer as part of the guarantee or whether he would make use of his warranty from the seller.
Definition of deficiency
A defect exists when goods do not have the properties or properties that were agreed between the seller and the buyer. If there are no agreements, then there is a defect if the goods cannot be used as usual or do not have the properties or the suitability that products of the same type normally have. So a toaster should be able to toast and an MP3 player should be able to play music. A defect can also exist, for example, if a sweater has a hole when you buy it, there are rust spots on a new car, the camera has fewer megapixels than advertised, the navigation system does not have Europe-wide maps, contrary to the promise when you bought it, or assembly instructions for a cupboard are only available Chinese is present.
Time is everything
Of course, you are only entitled to a warranty if the defect is not your own fault. If a defect occurs after a short time, one assumes that a consumer goods purchase - i.e. a purchase between a company and a consumer - was already there at the time of purchase. That's what the law says. Six months is the limit for this. During this time, the seller must meet your warranty claim or prove that you are responsible for the defect. If Mr. Zimmer's new smartphone does not react when touching the touch display, the seller has to prove that Mr. Zimmer has damaged it if he does not want to repair it.
As a buyer, you basically have a two-year guarantee from delivery. There are exceptions. When buying building materials, for example, you have a five-year guarantee. Although deviating agreements on the limitation period are generally permissible, the two-year limitation period for new items and the one-year limitation period for used items may not be undercut when buying consumer goods.
Guarantee claims remain in place even in guarantee cases
Warranty and guarantee are not the same: the manufacturer of a product often voluntarily guarantees a certain quality of his product or for the durability over a certain period of time. The manufacturer is then responsible for ensuring that the goods actually have the promised properties or remain functional for the specified period. It is important for consumers to know that a manufacturer's guarantee does not limit the statutory warranty claims. With his defective touch display, Mr. Zimmer does not have to be referred to the manufacturer and a guarantee assumed by the seller. Irrespective of any guarantee claims, Mr Zimmer is entitled to guarantee claims against the seller in the event of a defect. He can therefore choose whether he wants to assert his warranty claims against the seller or his possible guarantee claims against the manufacturer.
In the case of defective goods, you have the right to request repairs or the delivery of new goods against return of the defective goods. The law stipulates that the seller has to bear the necessary transport, travel, labor and material costs. The seller can refuse the type of supplementary performance chosen by the buyer - for example the delivery of new goods - if it causes disproportionate costs compared to the other type - repair. You can set a deadline for the seller to repair the damage. If he does not deliver goods free of defects within this period or does not carry out the repair, you can withdraw from the purchase contract or reduce the purchase price. Even if the same error is still present after two repairs, it is usually assumed that the repair has failed, so that you can then withdraw from the purchase contract or demand part of the money back as a reduction in the purchase price. In the event of withdrawal, you must return the purchased goods, the seller must reimburse the purchase price already paid.
Digital content guarantee
As with the purchase of goods, the buyer is also entitled to warranty claims when purchasing digital content in the event of a defect. The digital content includes computer programs, apps, music or even texts that can be downloaded. Other digital services provided via the Internet, such as the provision of a database or a social network, are also included. Digital content is offered in various forms, mostly either on external data carriers (CD, DVD, USB stick) or as a download. In the case of a download, the subject matter of the contract is downloaded and stored on a data carrier at the end user's private use. With so-called streaming, the content is made visible or audible in real time.
Lack of digital content
The quality of digital content must be guaranteed in the same way as that of goods. An audio book, for example, should have the promised length and a CD must be playable in an ordinary CD player.
Deficits in function are primarily to be regarded as deficiencies in computer programs.
A deficiency is present if:
• the installation is not possible due to a lack of installation instructions
• the duration of a program is considerably longer than usual
• the program does not work properly and, for example, gets stuck all the time
• a standard software product has security gaps.
Warranty claims for digital content
What claims the purchaser is entitled to in the event of defects in digital content is based on different regulations, depending on which type of contract the acquisition of the content is to be assigned to.
If a purchase contract is concluded for the acquisition of digital content, warranty regulations under purchase law apply. A sales contract is primarily assumed when standard software is purchased for permanent use. In the event of a defect, the buyer has a fundamental right to repair, replacement delivery, reduction of the purchase price or withdrawal from the contract against the seller.
If the lack of software results in consequential damage to the computer, you can be entitled to claims for damages. However, this does not apply if the seller is not at fault. For example, there is no fault if the defect in the digital content was not apparent to the seller.
If an order is placed to create individual software, a so-called work contract can exist. In the case of a contract for work and services, the entrepreneur is obliged to produce the work free of material and legal defects. If this is not the case, you can request supplementary performance. The entrepreneur can then eliminate the defect or create a new work. If the seller does not comply with a reasonable deadline set by you, you can rectify the defect yourself and invoice the seller for the costs, reduce the price or withdraw from the contract. Here, too, there is the possibility of claiming damages or compensation for wasted expenses if the entrepreneur is at fault. If you have not yet paid the full price, you can also refuse part of the money if you have a right to have the defect rectified.
Limitation of warranty claims for digital content
When purchasing digital content, there is a two-year limitation period from delivery.
In the case of a work contract, the warranty claims expire regularly within two or three years, depending on the type of work agreed. In the case of intellectual work, such as the production of individual software, there is usually a three-year limitation period.
In principle, you can also agree different statute of limitations with the contractor with the contractor. However, a limitation period that is less than one year from the start of the statutory limitation period is ineffective.
You can find more information and tips on your rights as a consumer at: Wissen-wappnet.de
Photo: Thinkstock / iStock
Legal and Law
- BGB § 433 Typical contractual obligations in the sales contract
Online shopping, contracts concluded on the phone, visits to representatives, coffee trips and Co.
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