Remedial work

Federal Supreme Court
Press Office Announcement

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No. 40/2011

On the burden of proof for a defect of the object of sale after the performance of rectification work

The Federal Court of Justice (Bundesgerichtshof) today issued a decision on the burden of proof for a defect in the purchased item after rectification work has been carried out.
The plaintiff leased a new Audi S4 from a leasing company, which the company purchased from the defendant. The warranty claims regarding the car were assigned to the plaintiff by the leasing company. Shortly after the handover, the plaintiff complained about various defects, including a defect in the engine, which manifested itself in misfiring, sporadic loss of power and shaking of the engine. The defendant carried out rectification work several times. The plaintiff claimed that the defect had not been remedied even by the defendant's repair attempts and declared withdrawal from the purchase contract.
In his action, the plaintiff sought repayment of the purchase price less the benefits of use obtained from the defendant concurrently with the return of the Audi S4. In the course of the taking of evidence during the trial, the expert found the defect described by the plaintiff for the first time during the third appraisal of the vehicle. However, the expert could not state when this defect had first appeared. The Regional Court dismissed the action. The Court of Appeal dismissed the plaintiff's appeal because the plaintiff had not been able to prove that the vehicle defect identified by the expert at trial was due to the defendant's unsuccessful rectification of the defect and was not due to a new cause of the defect.
The plaintiff's appeal against this was successful. The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales, among other things, reaffirmed its case law. Civil Senate of the Federal Court of Justice, which is responsible for matters including sales law, reaffirmed its case law that the buyer who has taken back the object of sale after the seller has rectified the defect bears the burden of proof for the failure of the rectification. However, the burden of proof does not extend to the question of the cause of a defect in the sold item, provided that causation by improper conduct of the buyer is excluded. If the object of sale - as in the present case - still shows the defect already notified before even after the seller's attempts to rectify the defect, the buyer does not have to prove that this defect is based on the same technical cause as the defect previously notified.
Judgment of 9 March 2011 - VIII ZR 266/09
Hof Regional Court - Judgment of 3 November 2008 - 32 O 1297/04
OLG Bamberg - Judgment of 26 August 2009 - 8 U 193/08
Karlsruhe, 9 March 2011
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