According to Section 312d BGB in conjunction with Art. 246a EGBGB, retailers are obliged to provide consumers with clear and comprehensible information about “the existence and conditions of guarantees” before they submit their contractual declaration. What this means is only partially clear from the law.
Duty to provide information on the manufacturer’s warranty arises from consumer protection law
According to Section 479 of the German Civil Code (BGB), the relevant instructions must contain a reference to the consumer’s statutory rights. This refers to the consumer’s rights if the goods are defective. As a rule, this means supplementary performance, withdrawal or reduction of the purchase price and compensation.
It must also be pointed out that these rights are not restricted by the guarantee. In addition, the entrepreneur is obliged to provide information about the content of the guarantee and all essential information required to assert the guarantee. This includes, in particular, the duration of the guarantee, the territorial scope and the name and address of the guarantor.
Duty to provide information on manufacturer warranties too?
It is certain that this obligation to provide information applies to warranty promises made by the seller. However, it has long been unclear whether the obligation to provide information also applies to so-called manufacturer’s warranties. In the case of such a guarantee, the manufacturer of the product is usually so convinced of its product that it grants the buyer the right to repair or exchange it independently of the seller and the statutory warranty provisions.
If online retailers also had to inform consumers about such guarantee promises, this would mean not only an extended obligation to provide information, but above all an extended obligation to investigate the respective manufacturers. This would significantly increase the risk of warnings for online retailers. This is because missing or incorrect information on guarantees is generally anti-competitive. In the past, the issue has therefore repeatedly been the subject of court decisions.
Courts partially affirm obligation to provide information on manufacturer’s warranty
For example, the Higher Regional Court of Hamm and the Regional Court of Bochum have assumed that the seller of a product must also provide information about manufacturer warranties in all cases. After all, the wording of the law only refers to “guarantees” and thus to a comprehensive or extended duty to provide information.
This is in contrast to the previous case law of the Higher Regional Courts of Celle and Bamberg and two other regional courts. These courts had only affirmed an obligation to provide information in the event that the retailer mentioned the respective guarantee in its sales text or expressly advertised it. The judges concede that the wording of the legal text certainly allows the assumption of an obligation to provide information about manufacturer warranties. However, they point out the considerable additional effort for retailers and the associated risks, for example with regard to the accuracy of the manufacturer’s information. The courts have therefore not yet been able to reach a consensus.
BGH refers question on duty to inform to the ECJ
The case decided before the Hamm Higher Regional Court is currently before the Federal Court of Justice. The latter has suspended the proceedings and referred the question to the Court of Justice of the European Union for a preliminary ruling. The Court of Justice is to clarify, among other things, whether the mere existence of a manufacturer’s warranty triggers a corresponding duty to provide information or whether the duty to provide information is only triggered by the mention of a manufacturer’s warranty in the retailer’s offer.
Until the court’s decision, however, the issue remains unresolved and therefore a potential pitfall for every online retailer. In case of doubt, the instructions should be as comprehensive as possible and also contain references to manufacturer warranties. This can minimize the risk of a warning and thus a legal dispute.