Lower Saxony Consumer Advice Center: After the introduction of the new regulation, no noticeable improvements so far
In a press release, the Lower Saxony consumer advice center comments on the effectiveness of the change: “New rules in warranty law should actually make life easier for consumers. [] So far there have been no noticeable improvements.” Rather, it is shown in reality “that those affected with defective goods continue to be left out in the cold” and often do not receive any response to their inquiries. They are also often sent back and forth between dealers and manufacturers , without ever getting closer to the exchange or repair of their device. Mareke Eilers, consultant at the consumer advice center, explains in the press release that dealers and manufacturers often explain to customers that they have defects such as unusually rapid wear and tear would be considered “normal wear and tear”. That is why the expert continues to call for stricter laws on consumer protection.
If the new device is defective, the retailer or manufacturer must make it possible to repair or exchange it – free of charge
However, that does not mean that the current legal situation does not protect consumers at all. Guarantees agreed between buyer and seller according to Section 443 BGB apply in addition to regulations such as the right to exchange or repair. Consumers can generally refer to this – but there are exceptions. If you are aware of the product’s defects when you buy it, you are no longer entitled to exchange or repair according to Section 442 of the German Civil Code. The same applies if you have signed an agreement waiving these rights. However, such agreements lose their effectiveness if the seller fraudulently concealed existing defects at the time of purchase (section 444 of the German Civil Code).
Sometimes sellers send a customer service to the customer’s home for an assessment or repair of the goods. These would then often be asked to take over the costs for the service, writes the Lower Saxony consumer center in its press release. “However, this is strongly discouraged.” Because according to Section 439 of the German Civil Code, sellers must pay the shipping costs etc. in the event of an exchange or repair. They can only refuse this if the costs incurred are not in relation to the value of the goods in perfect condition (section 275 BGB).
Expert: Consumers should under no circumstances agree to a repair “as a gesture of goodwill”.
According to Eilers, another trick used by dealers and manufacturers is to repair defective electronic devices for their customers “as a gesture of goodwill”. However, according to the expert, this does not legally recognize existing defects, so that one cannot speak of “subsequent performance” in accordance with Section 439 of the German Civil Code. This is problematic if a second fault occurs after the repair and within the first twelve months after purchase. Because a first “subsequent performance” is necessary in order to have a right to return the article or to withdraw from the contract in the event of a second error. So if the first defect was repaired “as a gesture of goodwill”, in the event of a dispute, according to paragraphs 323 BGB and 440 BGB, it must first be proven that there was a defect at all. “And experience has shown that that’s not easy,” writes the Lower Saxony consumer advice center. In this case, the burden of proof lies with the buyer of the electrical item. By the way: If a second defect occurs, you do not have to withdraw from the contract, but can also demand a price reduction according to Section 441 BGB. It is important that the discount must be in relation to the material value.
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