Deadline January 1, 2022: The BGB is being made fit for digital products!

One of the biggest reforms of the law of obligations in the German Civil Code after the fundamental modernization of the law of obligations around 20 years ago was introduced by the legislator with special rules for digital products on 1 January 2022. Two areas have been newly regulated. On the one hand, there are now special regulations for consumer contracts for digital products in Sections 327 et seq. BGB, and secondly, the legislator has revised the law on warranties for defects in the economically most important type of contract, the purchase contract, and made it fit for digital products.

From Prof. Dr. Patrick RöslerProfessor of Banking Law at the Allensbach University

Consumer contracts for digital products

The Directive on digital content and services (short: DIDRL - (EU) 2019/770) has led to the regulations on consumer contracts for digital products in Sections 327 et seq. BGB (German Civil Code). These have applied since 1.1.2022 and supplement the existing contract types of the BGB.

The standards deal with a completely new subject at the time, the standardization of consumer contracts for digital content (Examplescomputer programs, audio files, video games) and digital services (Examplescloud computing, streaming services). These only apply in relation to consumers.

The new law defines the concept of defects for the warranty by subjective and objective requirements as well as Integration requirements. Remarkable is the Obligation to update of the entrepreneur: Accordingly, the entrepreneur Function-preserving updates and security updates to be provided. And this over a "relevant period of time", which is an undefined legal term that still needs to be defined by the courts. The assessment of how long this period lasts is based on criteria such as purchase price, advertising claims, materials, etc. In the case of subscription obligations, the period runs in any case for as long as the subscription runs.

New warranty for defects in sales law

Here too, the changes are based on an EU directive. The new Goods sales guideline has the previous Consumer Sales Directive replaced. The EU legislator wants to promote this growth market and therefore harmonize the European internal market. By integrating the new EU regulations into the law on material defects in sales contracts, they apply to all types of sales contracts, not just contracts between companies and consumers. This means that B2B contracts are also affected.

The item sold has always had to be free of material defects and defects of title. However, the legislator has revised the details. According to the revised § 434 BGB, an item is free from Material defectsif they meet the subjective, objective and installation requirements at the time of transfer of risk. When selling goods with digital elements to consumers, for example, there is also an obligation to update, which leads to a defect in the item if breached.

Subjective requirements for the purchased item

The purchased item corresponds to the subjective requirementsif the following points are cumulative.

The matter must Agreed quality
It must also prepare itself for the Contractual use suitable and
with the Contract agreed accessories and with instructionsincluding assembly and installation instructions.

Subjective characteristics include the type, quantity, quality, functionality, compatibility, interoperability and other characteristics of the item for which the parties have agreed requirements in the contract. If there is a deviation between the target quality and the actual quality, this constitutes a Material defect before.

ExampleIf the purchased vehicle only has two-wheel drive and not four-wheel drive, as agreed in the purchase contract, there is a material defect in accordance with § 434 BGB.

Objective requirements for the purchased item

The purchased item must also (!) meet the objective requirements in order to be free of defects. The item meets the objective requirements if it

for the normal use suitable,
has a quality which, in the case of objects of the same type is common and those of the buyers can expect taking into account a) the nature of the goods and b) the public statements made by the seller or on behalf of the seller or by another person in previous links of the contractual chain, in particular in advertising or on the label,
the nature of a sample or specimen which the seller has made available to the buyer prior to the conclusion of the contract, and
with the Accessories including packaging, assembly or installation instructions and other instructions that the buyer can expect to receive.

The usual objective characteristics include the quantity, quality and other features of the item, including its durability, functionality, compatibility and safety.

Assembly requirements

Ultimately, the purchased items must Assembly requirements fulfill. The item meets the installation requirements if

the installation has been carried out properly or
the assembly has been carried out improperly, but this is neither due to improper assembly by the seller nor to a defect in the instructions provided by the seller.

Special features of goods with digital elements

For goods with digital elements extended obligations have been included in the law. These are regulated in the section on the sale of consumer goods (Sections 474 et seq. BGB) and therefore only apply in the relationship between consumer and entrepreneur.

In §§ 475b ff. BGB contain the supplementary warranty provisions for purchased items with digital elements. In addition to smartphones & co, they also include, for example, a car with integrated navigation. For the digital element there is a Obligation to update. The provisions on the warranty for goods with digital elements supplement the provisions of general sales contract law.

Reversal of the burden of proof: Presumption of the existence of a defect

An extension of the reversal of the burden of proof for the existence of a defect has also been newly introduced. According to § 477 BGB, there is a presumption that the item was already defective at the time of delivery if the defect occurred within one year. The old regulation of 6 months only continues to apply to live animals.

If you are interested in such exciting legal issues in business, you should study business law, for example in the Bachelor's or Master's degree program as well as in the MBA program can learn at Allensbach University.