No Rescission of a Purchase Agreement in the Absence of Defects
Cologne, NRW -- (SBWire) -- 03/01/2013 --GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg and Essen and London www.grprainer.com/en explain: In a case ruled on by the Schleswig Higher Regional Court (judgment of 21 December 2012, Az.: 3 U 22/12) concerning the purchase of a used vehicle, the buyer of the vehicle discovered a defect and had it repaired himself. Only subsequently did he declare rescission vis-à-vis the seller. However, in the opinion of the OLG, he did not have a right to rescind the purchase agreement.
In order for a buyer to be able to assert warranty claims for defects, it is always necessary for a defect to exist at the time of the passing of risk, which generally refers to when the item purchased is delivered. If these requirements are satisfied, the buyer can demand supplementary performance from the seller. In contrast, a reduction of the purchase price, damages claims or rescission are in principle only to be considered after expiry of an unsuccessful period of time set by the buyer for the seller to carry out supplementary performance.
The court has now made it clear that the assessment of the existence of a defect in the case of rescission depends on the point in time when rescission was declared. In the event that the object of the sale is not (any longer) defective at the time of this declaration, the buyer cannot also demand rescission.
A buyer is generally advised not to take action himself in the event that a defect is present. In contrast to the law governing contracts to produce a work, sale of goods law simply does not feature any legally regulated right to self-correction.
It is therefore important for a buyer who acquires a defective item to proceed properly from the outset in order to avoid being saddled with costs. Consequently, it is advisable in such a case to obtain the advice of a lawyer active in civil law, who can examine existing claims.
About GRP Rainer
GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.
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