Damages when Returning Defect Items

When buying a defective product as a consumer, can it be that you have to pay damages for having used this apparatus when you return it? The BGH clarified this on November 26, 2008 (re VIII ZR 200/05) in widely welcomed judgment.


Daisy bought an oven from a retail store for € 524.90. After using it for a half year, the enamel coating started to flake off. Since a repair was impossible the store exchanged it for a new oven. For this half year, the store wanted to have damages of € 70 for use of the oven. However, the Bundesverband der Verbraucherzentralen und Verbraucherverbände e.V. (Federation of German Consumer Organisations) demanded that it refund this amount. The merchant refused because of the wording of the law (§§439 IV, 346 I, II no. 1 BGB).

The Federal Court of Justice decided that when purchasing consumer goods (§474 1 BGB), the purchaser does - in contrast to the clear wording of the law - not have to come up for any "usage fees" when exchanging a defective device for a working one. This further development in law is necessary because otherwise the code's text would contradict higher, i.e. European, law. This would be the art. 3 no. 2 Directive of Consumer Goods provision, which determines that defective products are to be repaired or replaced at the cost of the vendor.

Before passing its judgment, the BGH presented (Art. 234 EC-Treaty) the legal question to the European Court of Justice if §439 IV BGB complies with said art. 3. The European Court of Justice decided on April 17, 2008 and answered the question as follows:

Art. 3 Directive 1999/44/EG is to be interpreted in such manner that a national provision allowing the vendor to demand damages for usage when exchanging a defect product contradicts European law. National courts are bound to the decision of the European Court of Justice.

Therefore the BGH decided §439 IV BGB is, contrary to its wording, to be restrictively applied. The rules for withdrawal from the contract are only applicable for returning the defect product itself but do not entitle the vendor to any reimbursement for loss of use of a defect item.

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