DE: In case of damage to health - no shortening of the warranty claim

Jun 17, 2022 Benn-Ibler Rechtsanwälte

A shortening of the statutory warranty obligation in the law of sales is not permissible if damage to health is also included. According to the German Federal Supreme Court (Bundesgerichtshof, BGH), this would be a violation of mandatory law.

The buyer of a diesel car demanded payment of the purchase price minus compensation for use from the vehicle manufacturer due to the installation of an inadmissible deactivation device ("Thermofenster"). The vehicle was subject to a recall, which was not yet final at that time. The purchase contract concluded between the parties contained the clause: "In the case of demonstration and business vehicles, the statute of limitations for material defects shall commence upon first registration according to the entry in the vehicle registration certificate, in amendment of the provision contained in item VII 1 of the Terms and Conditions of Sale of New Vehicles (Neufahrzeug-Verkaufsbedingungen). In any case, however, a statute of limitations of one year shall remain in force." The buyer claimed the use of the Thermofenster as a defect and demanded the subsequent delivery of a defect-free vehicle. The manufacturer refused the subsequent delivery. Thereupon, the buyer withdrew from contract.

According to the BGH, the withdrawal from the purchase contract cannot be denied due to the statute of limitations. The Senate of the court criticised that the lower court erred in law by assuming that the content of the clause complied with the requirements of Sections 307 et seq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB), which reduced the statute of limitations for warranty claims to one year.

In general, according to Sec. 309 no. 7 a and b BGB, liability for bodily harm and damage to health cannot be limited or excluded in general terms and conditions. The same must also apply to the enforceability of claims by reducing the statutory statute of limitations. The clause used by the manufacturer led to a reduction of the two-year statutory statute of limitations to only one year. This was an inadmissible limitation of liability, which made the clause invalid. It is replaced by the statutory provisions on limitation.

BGH, III ZR 263/20 (24.03.2022)