In one sentence
Gewährleistung is a statutory right in respect of defects against the seller, which cannot be excluded where new goods are sold to consumers — a Garantie is a voluntary additional promise, usually by the manufacturer, on conditions it chooses itself.
Whom you actually have to approach
Anyone making a complaint often ends up at the wrong address. Statutory rights in respect of defects are always directed against the seller as the contracting party; the manufacturer has no part in them. A Garantie, by contrast, frequently comes from the manufacturer and, under § 443 BGB, sits alongside the statutory rights without replacing them. If a retailer points to the manufacturer’s guarantee, that is no answer to a case of statutory liability — the retailer remains your point of contact.
Two years — and the twelve months that decide the dispute
Claims in respect of defects in the purchase of movable goods are as a rule time-barred two years after delivery (§ 438 Abs. 1 Nr. 3 BGB). That is a limitation period, not a promise: “two-year guarantee” often merely describes what applies in any event. What is more, the decisive point is that the defect was already latent at the time of handover — not that it appears at some point.
Who has to prove this decides the case: in a consumer sale it is presumed that a defect appearing within the first twelve months was already present at handover (§ 477 BGB) — twelve months since 1 January 2022, instead of six previously. After that you have to show that the fault was latent from the outset, often only by way of an expert report.
The order of the remedies is prescribed
The remedies for defects are not freely available at choice, but stand in an order of priority (§§ 437, 439 BGB):
- Subsequent performance first — you choose between repair and replacement delivery, and the seller is given the opportunity to provide it.
- Then rescission or a reduction in price, if subsequent performance fails, is refused or is unreasonable.
- Alongside this, damages, where the requirements for them are met.
Anyone who immediately demands the purchase price back is often in a worse position than necessary. Whether the setting of a period is exceptionally dispensable can be assessed only on the specific facts.
Second-hand goods: one year only under conditions
For second-hand goods the period may be shortened to one year, but not in passing. § 476 Abs. 2 BGB requires that the buyer was specifically informed of this in advance and that the shortening is expressly and separately agreed. A sentence in the small print is as a rule not sufficient for that.
The concept of a defect since 2022 — and the duty to provide updates
A defect today exists on two levels (§ 434 BGB): the goods must meet the subjective requirements, that is what was agreed — and the objective ones, the usual quality. A departure downwards is not a defect only where you were specifically informed about it and it is expressly and separately agreed.
For goods with digital elements — connected watches, cars with software, devices with an app — a separate duty is added: updates must be available over a period the buyer can expect (§§ 475b, 475c BGB). If security updates fail to appear, that may amount to a defect.
A guarantee, too, is not free of form
Voluntary does not mean arbitrary: once given, the guarantee binds. Under § 479 BGB the declaration must be simple and comprehensible, must point out the continuing statutory rights and must be available on a durable medium by the time of delivery at the latest.
Where the software stops
A platform can structure a letter of complaint and remind you to demand subsequent performance first. It cannot assess whether an expert is needed or whether litigation is worthwhile. Where the value of the goods is high, where the cause of the defect is disputed and where the other side is represented by lawyers, the case belongs to be reviewed — we name our limits openly.
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