The Higher Regional Court of Hamm recently dealt with the sale of so-called B-goods by a trading company and the corresponding warranty. The trading company no longer advertised goods in their original packaging or goods with damaged original packaging as B-goods. The trading company also shortened the liability period for defects from two years to one year for these B goods to consumers and advertised this accordingly. For this, the trading company was accused of violating the UWG. The trading company argued that B-goods were used goods and that the shortening of the defect liability period was also effective for consumers.
The trading company was wrong, only partially, but on the crucial point. It must be admitted that the liability period for used goods may be reduced to one year. However, B-goods cannot automatically be equated with used goods. Accordingly, exceptions in consumer protection regulations for used goods do not per se apply to B goods. According to the Hamm Higher Regional Court, items are used if the manufacturer, the seller or a third party has already used the goods normally and the risk of a defect is therefore significantly increased. However, B-goods are not used in this sense if only the original packaging has been removed or damaged. This does not change if the seller has removed the original packaging to demonstrate the goods, because this is not the same as normal use.
B-stock is therefore only used goods if they are actually used, otherwise not. If it is not used, the normal consumer protection regulations apply.
The current legal situation for traders who offer their goods and services in the EU, i.e. in various European legal systems, is – to put it carefully – confusing. Consumer protection has now been largely harmonized and will undergo further changes in Germany from June 13, 2014. However, each EU state still has its own regulations that are not regulated uniformly, for example in the area of general terms and conditions. The costs of having legal certainty in every EU state are associated with high costs, which particularly prevent small and medium-sized companies from boldly organizing sales throughout the EU.
The – planned – Common European Sales Law should apply in every EU state in addition to the respective national regulations and should not replace them. A corresponding choice of law is therefore necessary. The advantage is that legal uncertainty should be largely ruled out because this common European sales law applies equally in all countries. A high level of consumer protection is also guaranteed in this Common European Sales Law. However, this has the advantage for entrepreneurs that consumers are more likely to agree to a corresponding choice of law. In return, companies receive legal certainty for their sales.
It remains to be seen whether and how the member states will agree on the introduction of the Common European Sales Law, in particular whether it only applies to distance selling contracts. In addition, the important practical question of the legal enforcement of claims has not been answered. Entrepreneurs should nevertheless monitor developments in order to be up to date.
Dr. Christian Andrelang