How to deal with it for concrete products?
In addition to the new provisions amending the construction contracts law, the legislator has also created, in the interests of consumer protection, new provisions on a stricter vendor’s and supplier’s liability for so-called costs of removal and installation. They provide for the different treatment of transactions concluded between businesses and the purchase of consumer products to be terminated, introducing a common no-fault claim to subsequent performance for the costs of removal and installation on the part of the purchaser according to the new Section 439(3) of the BGB (Bürgerliches Gesetzbuch = German Civil Code). This is subject to the condition that the defective object of purchase has been installed (e.g. tiles or parquet, but also concrete products) or attached to another object in accordance with its type and intended use. The vendor is then obliged, within the scope of subsequent performance, to compensate the purchaser for the expenses required for removing the defective object and installing or attaching the rectified or non-defective object. The vendor himself can then have recourse against his suppliers in accordance with Section 445a of the German Civil Code.
In real life, it is of special importance for the dealers, suppliers and building trades affected by this change in the law whether the vendor’s liability for the costs of removal and installation can be contractually waived, in particular by means of appropriate general terms and conditions. Legal certainty is provided for consumers only in this context, since the liability towards them for the costs of removal and installation cannot be limited by referring to conditions rendered on standard forms.
Within the meaning of the new statutory provisions, dealers and suppliers will need to attach greater importance to ensuring that the object of purchase is indeed installed or attached in accordance with its type and intended use. In addition, dealers and suppliers will have to be just as careful in fulfilling their duty to verify and inform as they will otherwise lose an independent right of recourse towards their supplier. It is doubtful that the liability for costs of removal and reinstallation can be limited at least between businesses by referring to conditions rendered on standard forms.