Extension of recourse liability in the B2B area

Recourse liability along the supply chain will be extended due to implementation of European case law in the area of supplementary performance.

At the turn of the year, the case law of the European Court of Justice (C 65/09) comes into force, so that a seller might have to reimburse the expenses for removal and re-installation of a defective sales object – if already installed – within the scope of supplementary performance, § 439 para. 3 BGB (German Civil Code). As a result of this new regulation, the risk is that sellers of building materials and other items in particular will have to reimburse dismantling and installation costs much more often than before. This risk is to be put into perspective by the newly introduced § 445a BGB.

The planned regulation of § 445a of the German Civil Code (BGB) is intended to grant the (last) seller, who has been sued by the buyer by way of subsequent fulfilment, a claim for reimbursement of the (last) seller’s expenses against their supplier, which the (last) seller had to bear in relation to the buyer under §§ 439 paragraphs 2 and 3,475 paragraphs 4 and 6 of the German Civil Code (BGB), if the defect was already asserted by the buyer on transfer of the risk to the buyer. An immediate right of recourse to reimbursement of expenses now exists – irrespective of the priority of subsequent performance which would otherwise have to be taken into account – even if the last purchase contract in the supply chain is one between two companies and not, as in the past, if the last transaction is merely a consumer transaction.

Under the previous legal position, a right of recourse based on a defective delivery was only possible against the supplier if the last legal transaction in the supply chain was a consumer goods purchase, i. e., the item was finally sold to a consumer.

With the amendment to the law that comes into force on 1 January 2018, disadvantages arising from a defective item are to be passed on as far as possible to the entrepreneur in whose area the deficiency arose. The provision also means that any setting of deadlines as a prerequisite for withdrawal, reduction in price or compensation within a supply chain is also unnecessary if the creditor concerned had to take the item back from their buyer.

Source: Federal Law Gazette Volume 2017 Part I No. 23

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