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 |  Dennis Wiegard

Changes in law as of January 1, 2022 - New digital sales law (Part 1)

Will everything be different in 2022? Probably not, but nevertheless the biggest reform of the law of obligations in the last 20 years is imminent. On January 1, 2022, there will be numerous changes to the German Civil Code (BGB), which we would like to explain to you below:

What changes?

The most common contract we conclude in life is the contract of sale. And it is precisely there, in the general law of sale, that the concept of a defect changes and consequently the question of when an item you have purchased is defective.

In future, consumer contracts for digital products, goods with digital elements, and consumer contracts for analog goods will have to be differentiated in consumer sales law.

Both amendments have far-reaching consequences for the entire warranty law.

Why are there the changes?

The aim is to harmonize the law on sales within the EU. In particular in the area of products with digital functions (smartphone/watch/tv), the EU Commission saw a need for regulation to ensure a higher level of consumer protection. With the amendments to the BGB, the German legislator is implementing the EU Directive on the Sale of Goods (2019/771 WKRL) and the Directive on Digital Content and Services (EU 2019/770 dID-RL) in this respect.

When is a purchased item free of defects?

Until December 31, 2021, the so-called "staged definition of material defect" applies in the law of sale. According to this, an item is free of material defects if it has the agreed quality at the time of transfer of risk (Section 434 (1) sentence 1 BGB old version). Insofar as the quality is not agreed, the item is free of material defects if it is suitable for the use presupposed under the contract (contractual intended use, § 434 para. 1 no. 1 BGB old), otherwise if it is suitable for normal use and has a quality which is usual for items of the same type and which the buyer can expect according to the type of item (normal intended use + usual quality, § 434 para. 1 sentence 1 no. 2 BGB old).

In the future (from 01.01.2022), an item will be free of material defects if, at the time of transfer of risk, it is

  1. the subjective requirements (Section 434 (2) of the German Civil Code - agreed quality, contractual intended use with accessories and instructions),
  2. the objective requirements (Section 434 (3) of the German Civil Code - customary use and usual condition) and
  3. complies with the assembly requirements (Section 434 (4) BGB).

The new concept of material defect consequently has three cumulative requirements. In future, your purchased item may therefore also be defective according to the objective requirements (para. 3) or according to the assembly requirements (para. 4), even if it complies with the agreed quality (subjective requirements according to para. 2). This represents a departure from the primacy of the quality agreement.

The individual subjective (para. 2) and objective requirements (para. 3) must also be cumulative. In the case of the subjective requirements, this means, for example, that the purchased item must have the agreed quality (para. 2 no. 1) and be suitable for the use presupposed under the contract (para. 2 no. 2). And even if these two subjective requirements are fulfilled by the seller, the purchased item would still be defective according to the subjective concept if the instructions or other accessories owed according to Para. 2 No. 3 (last subjective requirement) were missing.

I will inform you about the other changes soon in part 2, but I am already at your disposal for questions regarding part 1.

Author: Attorney at law Dennis Wiegard

Dusseldorf, Dezember 2021, 16th

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