Explain the differences between ICT and telecommunications

The difference between guarantee and warranty

The terms "guarantee" and "warranty" are repeatedly confused, misunderstood or incorrectly applied. For several years now, the controversial issue of guarantee and warranty has been boiling up again as a result of the VW scandal over exhaust gas manipulation. In a landmark judgment issued on May 25, 2020, the Federal Court of Justice confirmed that buyers of a diesel vehicle with "cheat software" from VW "are in principle entitled to compensation," writes ADAC. However, plaintiffs would go away empty-handed if they "only bought their car after the VW emissions scandal", according to the automobile association.

According to the Düsseldorf law firm Rogert & Ulbrich, a "sensational judgment" by the Hildesheim Regional Court on January 17, 2017 (Az .: 3 O 139/16) had significantly expanded the group of promising plaintiffs against the fraud formulated there: "This can now also finally all those who seek compensation (repayment of the purchase price, taking into account the compensation for use), whose warranty rights are statute-barred or who have not bought their vehicles from authorized dealers. " As the BGH has now ruled, there are a few things to consider - as is so often the case with the issue of guarantees and warranties. For example, frequent drivers have Bad cards and only one claim to reduced damages, since they would have "received something in return for the money paid", according to the judges. They also came to the conclusion that in this case, interest was also not justified. Other claims are meanwhilestatute barred.

Federal Minister of Justice wants to enforce a longer warranty

At the beginning of 2021, the Federal Minister of Justice Christuine Lambrecht (SPD) caused a stir when she called for longer warranty periods. "With high-quality products, consumers can rightly expect that they can be used in the long term," she told the dpa. The Federal Ministry of Justice has now presented a draft according to which the previously applicable warranty period is to be extended from two to three years.

Especially with expensive goods such as "high-priced electrical appliances", the two years are "not appropriate," said Lambrecht. Instead, you have deadlines in mind that are based on the expected service life of a product. The minister assumes that manufacturers will also benefit if they "develop particularly durable and easily repairable products". Lambrecht to the dpa: "This would counter a throw-away mentality and strengthen a modern, sustainable recycling economy." In addition, the Misterin plans to introduce an update obligation for sellers of digital products.

Highly complex topic

There are many things to consider when it comes to warranty and guarantee and possible compensation for the customer. In the following we explain the current legal situation in the event of complaints and summarize the differences between guarantee and warranty. Here we refer, among other things, to the statements made by the lawyer Dr. Kevin Grau from the law firm GRAU Rechtsanwälte and from Bea Brünen, legal assistant at the IT law firm in Munich. Finally, we answer other important questions from this topic in an FAQ section.

Guarantee

The warranty (= liability for defects, guarantee for defects; engl. warranty) describes, according to Kevin Grau, the legal consequences and legal claims of the buyer within the scope of a sales contract if the seller has delivered defective goods or items.

Guarantee means that the seller is responsible for ensuring that the item sold is free from material and legal defects. Therefore, the seller is liable for all defects that already existed at the time of sale - also for those defects that only become noticeable later, so clearly describes lawyer Dr. Kevin Grau from the law firm GRAU Rechtsanwälte in Wiesbaden. Bea Brünen adds: "In the case of a sales contract, the seller has the obligation to hand over faultless goods to the buyer." This is also confirmed by the consumer advice center: "The warranty ('liability for material defects') is a legally regulated claim of the consumer against the seller if defective goods are delivered."

According to Brünen, paragraphs 434 and 435 of the BGB regulate the cases in which a purchased item is defective. According to these regulations, there is a defect, for example, "if the purchased item does not have the contractually agreed quality, is not suitable for normal use or the assembly was not carried out properly".

The warranty period is according to § 438 BGB24 Months and can be shortened to twelve months in the case of used goods by means of general terms and conditions or an agreement between both parties. However, it cannot be contractually excluded, continued Grau. Brünen adds: "An exception to this principle is possible when selling second-hand goods if the seller is an entrepreneur and the buyer is a consumer." In this case, the statutory limitation period can be shortened to one year in an individual contract or in terms and conditions. The same applies, regardless of whether new or used goods are sold, in the context of pure B2B transactions.

In favor of a consumer will in the first six months after delivery it is assumed that the goods were defective at the time of delivery, unless the seller can prove that the defect did not exist at the time of delivery. Brünen: "In the first six months after handing over the purchased item, the customer has a very good chance of actually enforcing his claims for defects against the seller." This is also confirmed by the consumer advice center: "It is legally presumed that a defect that occurred was already present at the time of purchase." The buyer then does not need to provide evidence that, for example, a couch or computer was already defective or impaired in its function at the time of handover. According to Grau, the customer first notices later than six months After buying the defect, the burden of proof changes, i.e. now he has to prove that the item was defective when it was handed over.

The consequences of the material defect result for the sales law from § 437 BGB. If the thing is defective the buyer has the following legal rights:
- Right to supplementary performance (§ 439 BGB),
- Right of withdrawal (Section 440; Section 323; Section 326 (5) BGB and the provisions mentioned there),
- Reduction (§ 441 BGB),
- Right to compensation (§ 437 No. 3 BGB and the regulations mentioned there).

The subsequent performance is the overriding right. On the one hand, it is due to the delivery of a new item (exchange, or technically: Subsequent delivery) or by eliminating the defect (e.g. repair, technical: Rework) possible. The type of supplementary performance to be provided is generally determined by the buyer and not the seller; a contractual shift of the right to choose is conceivable in principle, but not possible when buying consumer goods. According to Brünen, the buyer can also remedy the defect himself and claim compensation from the seller for the necessary costs (Section 437 No. 3 BGB).

The consumer advice center emphasizes another important point that has to be considered with the supplementary performance: In these cases, the seller must "bear all costs for transport, work and materials". Customers could also ask for an advance payment for transportation or shipping costs. However, this does not apply to revocations of contracts for goods free of defects. In addition, the customer can decide whether the purchased goods should be repaired or exchanged. But: If it "incurs disproportionately high costs", the dealer may choose the type of supplementary performance deny.

warranty

The guarantee guarantee) is a voluntary and freely configurable service provided by a retailer or manufacturer to the customer in addition to the statutory warranty obligation (durability or functional promise). According to Bea Brünen, there are basically three options for a guarantee:

  • the manufacturer (manufacturer's guarantee)

  • the seller (dealer guarantee) or

  • be other people who are involved or interested in selling the thing.

The guarantee promise mostly refers to the Functionality of certain parts (or the entire device) over a certain period of time. In the case of a guarantee, the condition of the goods at the time they are handed over to the customer does not matter, as functionality is guaranteed for the period.

According to the consumer advice center, however, the consumer has to "request one Guarantee certificate in text form in which he will find the exact warranty conditions such as information on the guarantor, the length and content of the guarantee ". Many manufacturers would also" limit their guarantees in many ways ".only certain parts or properties of an itemFor example, the drive of the computer or the rusting through of the car body. It is also common that only spare parts are covered by the guarantee in the event of a defect. The wages for installing the parts are then to be paid by the buyer. Other manufacturers take over According to the consumer advice center, "only the guarantee for spare parts that are not subject to wear and tear".

A guarantee promise may in no way reduce or replace the statutory warranty (24 months), but only applies in addition to or in addition to the statutory warranty.

Consumers often confuse the terms "guarantee" and "warranty", which have different meanings. Roughly one can say that warranty is a matter for the dealer and guarantee is a matter for the manufacturer. While dealers are legally obliged to provide a guarantee, manufacturers are free to guarantee their products, according to lawyer Dr. Kevin Gray.

Bea Brünen from the IT law firm adds an important point: "Without a corresponding declaration of guarantee, there is no guarantee."In addition, the warranty does not affect the statutory warranty claims (Section 443 (1) BGB). The customer can, however, assert both the normal warranty claims and the (extended) warranty claims.

Brünen states that there are "considerable differences" between warranty and guarantee that dealers should be aware of respond correctly to customer demands to be able to. The terms warranty and guarantee are often mixed up, for example when the buyer insists on his “legal guarantee”.

You will find further FAQs on this topic on the following pages.