Cure

Cure / Nacherfüllung

June 13, 2023

If a purchased item is defective, i.e. if it has a defect or does not correspond to what the buyer and seller agreed, the buyer can demand "cure" in accordance with sections 437 No. 1, 439 (1) of the German Civil Code (BGB). This means a second attempt to fulfil the obligations owed by the buyer under the contract, e.g. in the case of a purchase contract the delivery of goods free of defects. In this case, the buyer can choose in which form he/she wants the supplementary performance: He/she can demand the removal of the defect by way of rectification, for example by repair, or the delivery of a new, defect-free item. It is important to know that the buyer has no right to remedy the defect himself/herself. The buyer is then left to bear any costs that arise in the case of such a so-called self-execution.

Pursuant to section 439 (2) of the German Civil Code (BGB), the seller shall bear the costs of remedying the defect or delivering a new product, in particular transport, travel, labour and material costs.

Section 439 (3) BGB, which came into force on 1 January 2018, regulates the previously highly controversial question of who has to bear the costs of removing the defective item and (re)installing the newly delivered or repaired item in the event of subsequent performance of purchased goods, such as kitchens or floor tiles, which were initially installed by the buyer but subsequently showed defects. Pursuant to section 439 (3) BGB, the entire costs incurred in this connection shall now be borne by the seller.

Refusal of subsequent performance by the seller(s)

The seller may refuse subsequent performance pursuant to section 439 (4) of the BGB if this is only associated with disproportionate costs. On the one hand, it is conceivable that one variant of subsequent performance is associated with disproportionate costs compared to the other (relative disproportionality). In this case, the buyer's right to subsequent performance is limited to the other variant of subsequent performance. If, for example, the repair of a purchased car is considerably cheaper than the delivery of a completely new car, only the repair can be demanded. On the other hand, both variants of supplementary performance can also be refused if they are disproportionate, especially in view of the value of the item in a defect-free condition (absolute disproportionality). As a rule of thumb, according to the Federal Supreme Court, absolute disproportionality exists if the costs of subsequent performance would amount to more than 150% of the value of the item in a defect-free condition or 200% of the reduced value due to the defect, whereby, however, the individual case must always be weighed up.

The purchaser's right to subsequent performance is excluded pursuant to section 442 BGB if the purchaser was aware of the defect at the time of conclusion of the contract or was grossly negligent in failing to recognise the defect. In the so-called installation and removal cases according to section 439 (3) BGB, knowledge or grossly negligent misjudgement shall be based on the time of installation or attachment of the item. If the seller has fraudulently concealed the defect or has given a guarantee for the quality of the item, he/she is liable irrespective of whether the defect was known or misjudged.

Priority of supplementary performance

In the case of defects in a purchased item, the buyer must always set the seller a reasonable deadline for subsequent performance before he/she can withdraw from the contract or reduce the purchase price, section 440 BGB. This is intended to grant the seller a "right of second offer". In case of unacceptability of the supplementary performance, failure or final refusal by the seller, the setting of a time limit is dispensable. After two unsuccessful attempts to remedy the defect, the subsequent performance shall be deemed to have failed.