Cologne, NRW -- (SBWire) -- 06/07/2013 --GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London www.grprainer.com/en explain: Such additional costs can, for example, relate to assembly and removal costs. In its judgment of 17 October 2012 (Az. VIII ZR 226/11), the 8th Civil Chamber of the Federal Court of Justice (BGH) held that a previous judgment of the Court of Justice of the European Union (CJEU) of 16 November 2011 (Az. C-65/09, C-87/09) is not applicable to cases in which businessmen conclude purchase agreements among themselves.
The basis of the CJEU’s decision was that a consumer can demand within the framework of his claim for supplementary performance that the businessman both removes the defective item and assembles the item free of defects in replacing the defective item. Moreover, it is possible for the businessman not to have to perform the removal and reassembly himself and instead merely settle the costs incurred.
The BGH established that this decision is only to be applied to purchase agreements between consumers and businessmen. This should in no way conflict with the decision of the CJEU.
It is generally advisable for a purchaser not to act himself when a defect is present. In contrast to the law regulating contracts to produce a work, there is no legal right in sale of goods law to self-help. The principle of precedence for the seller to carry out supplementary performance applies. The seller is supposed to have the possibility of initially being able to rectify existing defects himself.
It is therefore important for the purchaser acquiring a defective item to proceed correctly from the outset in order avoid being left with costs. In such a case it is thus recommendable to obtain the advice of a lawyer active in the field of civil law who can examine existing claims and plan further action. For businessmen, it is worth having agreements drawn up in advance by a lawyer.
About GRP Rainer
GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.
Contact Michael Rainer
Lawyer, Managing Partner
GRP Rainer LLP
Hohenzollernring 21-23
50672 Cologne
Germany
Phone: +49 221-27 22 75-0
info@grprainer.com
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No Reimbursement of Additional Costs in the Event of Supplementary Performance in Sale of Goods Law
If a businessman purchases a defective item from another businessman, he can demand the delivery of the defective item within the framework of his claim for supplementary performance, but not the reimbursement of any additional costs.