Statutory warranty for defects: Königstein Local Court (AG Königstein), judgment of 5 July 2024

Proving that an item does not in fact meet the statutory requirements of section 434 of the German Civil Code (BGB) does not usually present claimants with major difficulties. The question of when the defect first arose and whether it was already present, or at least inherent, when the item was handed over is a different matter. Outside the reversal of the burden of proof under section 477 BGB, the buyer must prove that a defect was already present when the risk passed. A recent decision by Königstein Local Court (AG Königstein) in the Taunus region illustrates that the hurdles are high and buyers are frequently unable to do so.

Facts

The court had to decide the following case. In 2020, the claimant purchased a foldable smartphone from the defendant. It was fitted with a protective film applied at the factory. This was not a “normal protective film” of the kind familiar from retail products, but one specially developed for the folding process. After more than six months had passed (the decision was still governed by the former version of section 477 BGB), the film began to lose adhesion and air bubbles formed beneath its surface. This significantly impaired the visibility of content on the screen in particular. The claimant ultimately brought an action against the seller seeking repair.

The court heard evidence from an expert on the possible causes of the film detaching. The key question was whether the detachment resulted from the folding movements carried out with the device, physical damage or the claimant cleaning it with disinfectant. Although the expert considered detachment due to the disinfectant possible, they could not identify any of the causes with certainty. The Local Court dismissed the action.

Requirements for the claimant’s evidence

Under the general rules on the burden of proof, the claimant must prove all facts giving rise to the claim. This includes proving that the defect was already present, or at least inherent, when the purchased item was handed over. The court must be positively convinced as part of its free assessment of the evidence under section 286(1) of the German Code of Civil Procedure (ZPO). The court expressly does not assume that, where the origin of the defect cannot be established, it must already have been inherent in the device. Instead, the claimant must set out and prove the specific cause of the defect.

In this case, the expert could neither establish that the detachment was attributable to the claimant’s handling nor identify any design defects. The claimant therefore failed to discharge the burden of proof concerning when the defect arose.

A protective film detaching through use is not a defect

The court also found that the mere fact that the film detached during the smartphone’s service life did not itself constitute a defect within the meaning of section 434(1), sentence 2, no. 2 of the former version of the BGB. Rather, as with protective films in other applications (such as protection for a vehicle’s loading edge), this was a component that generally has to be replaced during the service life of the principal item in the case of items of the same type. This corresponded to average expectations.

Conclusion

The Local Court’s judgment shows that consumers outside the presumption under section 477(1) BGB are likely to face regular difficulty in proving not only a defect, but also that the defect was present when the risk passed. This applies all the more to products of greater technical complexity.

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