Half-year Defectivity Rule in Warranty Cases

Can a car dealer effectively argue that whenever a defect can happen anytime, it does not mean that the defect was there from the beginning? A judgment of this (re VIII ZR 259/06 of July 18, 2007) was given by the BGH.


Donald had bought a car at a price of € 4,500 with a speedometer reading of 159,000 km from Daisy, a saleslady. Four weeks later, the cylinder head gasket was broken. Within the first half-year after purchase, it turned out the car was defective. He wanted to return the car and get his money back but Daisy stubbornly refused. Bringing this issue to court, they fought through all appeals to land at the Federal Supreme Court. Donald argued that according to §476 BGB the law assumes that if a defect to a product arises, within the first half-year after delivery, the vendor has sold a defective product. As this was the case, Daisy was supposed to take back the care and return the sales price.

Daisy, however, argued that the aforementioned defect could have happened anytime and not necessarily at the time of sale. Therefore, she was not responsible.

The BGH, however, disallowed this argument because it would contradict the clear purpose of the law. §476 BGB turns the burden of proof for the first half-year after purchase back to the vendor. Anything else would clearly make consumer protection moot and be against the law. The court pointed out that is was the intention of the law to give consumers a relief in case of a defect and that the law assumes the defect was already there at the time of sale. On the other hand, whenever the vendor proves that the defect really only happened after the sale, then he is not liable for the defect.

Therefore, Donald won in court and was able to have money returned after giving back the car to Daisy.

Published on the old CMS: 2007/9/18
Read on the old CMS till November 2008: 186 reads

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