Now even the damage – The compensation for the purchase contract
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Basically, § 437 No. 3 BGB refers only to the general provisions regarding damages, §§ 280 ff., 311a BGB. Therefore, here too, that applies breach of duty and representations must be present. The breach of duty, however, is already indicated by the existence of a defect. However, this does not apply in the case of the initial impossibility according to § 311a BGB. [Looschelders, § 4 marginal 120]
Essentially, therefore, the same conditions apply as they apply in the general performance disruption law.
In contrast to breach of duty, which already indicated by the presence of a defect It is possible that the seller does not have this represent Has. However, he has to prove this, which follows the general rules. [Musielak / Hau, § 8 marginal 914]
According to § 276 BGB has the Seller intent and negligence regarding the dereliction of duty represent. As it is in the purchase guarantee law, however, a Right to second tender for the seller, in the case of damages instead of performance, the question arises as to whether, in the event of representation, the original malperformance or supplementary performance must be remedied. [Looschelders, § 4 marginal 123]
The constellation is problematic if supplementary performance is already excluded on the basis of § 275 BGB. Therefore, will distinguished between remediable and irreparable defects. [Musielak / Hau, § 8 marginal 915]
Should the defect remediable can be both on the Obligation to deliver a faultless item be turned off, as well as on the subsequent performance. However, if the defect was already present at the beginning and can not be remedied, it is crucial whether the seller knew or should know the defect. In case of later impossibility it is decisive, if the seller is responsible for them. [Looschelders, § 4 marginal 123 f.]
investigation duties the seller has regular only if this is from the Circumstances of the case results. [Looschelders, § 4 marginal 125]
Of course, the seller as well as in the general law of obligations the behavior of agents to represent, § 278 BGB. It is questionable whether this also applies to manufacturers and suppliers. Since these are not active in the circle of duty of the seller, this is rather to be rejected. [Looschelders, § 4 marginal 132]
You will find further information about the representation here.
Damage caused by the purchased goods to other legal interests of the buyer (such as the accidental injury after delivery of a car with defective brakes) are covered by § 280 paragraph 1 BGB (compensation in addition to performance), as a subsequent performance would not eliminate the damage. [Musielak / Hau, § 8 marginal 920]
Compensation instead of performance
When damages instead of performance must be between distinguishable from irrecoverable and irrecoverable defects become.
In the case of recoverable defects, § 437 No. 3 BGB refers to §§ 280 para. 1, 3, 281 BGB.
As a temporal starting point for representing must come both the first delivery a faulty thing, as well as not or not proper subsequent performance into consideration. [Looschelders, § 4 marginal 134]
From § 281 Abs. 1 BGB it follows that the buyer the seller basically a Deadline for subsequent performance has to put. This deadline is dispensable if the requirements of § 281 para. 2 BGB are satisfied. Also gem. § 437 No. 3 BGB the regulation of § 440 BGB applied.
For non-recoverable defects is crucial when this condition has occurred.
For the subsequent irrecoverabilityt of the defect are covered by §§ 280 para. 1, 3, 283 BGB. A deadline is therefore dispensable. It should be noted that the defect must already exist at the time of the transfer of risk. Only the irrecoverability can occur even after the transfer of risk.
Should the defect already initially irrecoverable be, the claim of the buyer in accordance with § 311a para. 2 BGB. According to § 311a Abs. 2 S. 2 BGB i.V.m. § 276 BGB is basically to be based on whether the seller knew or knew the irreparable defect.
The buyer has the choice between small and large damages. At the small damages he keeps the object of purchase and only gets the differential cost to the state of proper fulfillment replaced (e.g., inferior value). [Looschelders, § 4 marginal 139]
When damages instead of the whole performance the buyer returns the purchased item and receives Replacement for all damages, caused by non-performance of the contract (for example loss of profit or replacement costs). This claim is however gem. §§ 281 Abs. 1 S. 3, 283 S. 2, 311a Abs. 2 S. 3 BGB excluded for insignificant defects. [Musielak / Hau, § 8 marginal 926]
By the reference of § 437 No. 3 BGB on § 280 BGB (which refers to § 286 BGB), the buyer can also delay damage gem. § 280 para. 1, 2, 286 BGB, if the seller with the subsequent performance in default coming.
Loss of use damage
In case of loss of use (for example, if a device, which is to make a profit, does not work and therefore the buyer escapes profits), the BGH solely relinquishes §§ 437 No. 3, 280, paragraph 1 BGB. [Looschelders, § 4 marginal 142]
reimbursement of expenses
According to § 437 No. 3 BGB the buyer can alternative for damages also reimbursement of expenses i.S.v. Require § 284 BGB. Here are the general rules. These include, above all, the prerequisites of representation and setting a deadline for remedying the defect. Also, the buyer must have incurred expenses in reliance on the receipt of the service.
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