WARRANTY REPAIR COSTS
29.09.2017
What is the legal situation if a consumer buys tiles from a business, installs them himself and after installation it turns out that the tiles have a defect that can only be remedied by completely replacing the tiles? Does the business have to bear the installation and removal costs under the warranty?
Until now, such installation and removal costs have been considered as consequential damages in the context of compensation. The prerequisite for this is that the contractor is at fault, which is usually difficult to prove.
In principle, it should be noted that, within the scope of the warranty, the transferee can demand either the improvement or the replacement of the item in the event of a material defect. If the improvement and replacement are impossible or involve disproportionate expense for the transferor, the transferee has the right to a price reduction or, if the defect is serious, to a rescission.
In a ruling, the ECJ clarified the legal question of whether the installation and removal costs are to be reimbursed under the warranty. It came to the conclusion that the installation and removal costs for defective goods that were properly installed are covered under the warranty in a consumer transaction (i.e. a contract between a business and a consumer).
The entrepreneur can either remove the defective consumer goods from the item into which they were installed and install the replacement consumer goods into this item. Alternatively, he can bear the costs required for the removal and installation of the replacement consumer goods.
The reimbursement of installation and removal costs is limited to contracts between businesses and consumers (B2C sector) and does not extend to purchase contracts between two businesses (B2B sector) or between consumers. With regard to the last two constellations, such installation and removal costs can only be reimbursed by way of tort law if they qualify as consequential damages and the fault of the person causing the damage can be proven.
Due to the primacy of Union law, the Austrian courts are obliged to interpret national law in accordance with Union law. As a result, it can be stated that the installation and removal costs in consumer transactions are covered by the warranty.