The new warranty law – everything clear?
With the implementation of two EU directives, the Austrian legislator has changed the existing warranty law in essential areas and thus put it on a new footing. In the future, there will be two “worlds” – one for transactions with consumers and one for transactions with entrepreneurs; both worlds are new as of 01.01.2022, i.e. they affect contracts concluded as of 01.01.2022. Entrepreneurs are therefore well advised to take a first look at the new warranty law and prepare for the changeover. After all, there are still unanswered questions that need to be resolved in practice and ultimately by the courts.
The Consumer Warranty Act (VGG), which affects transactions between entrepreneurs and consumers, was created from scratch. In addition, there are also very significant amendments to the General Civil Code and the Consumer Protection Act – for example, in the future, a defect is presumed to exist at the time of handover if the defect occurs within one year of handover. Previously, this “presumption period” was only 6 months.
To which transactions does the VGG apply?
The VGG covers contracts for the purchase of goods and contracts for manufacture and supply. However, it also covers contracts for the provision of digital services, which are divided into two groups:
- Provision of digital content: e.g. photos, videos, e-books, software;
- Provision of digital services: e.g. social media, streaming services, apps.
In addition, a provision was created in the VGG that provides for a duty to provide updates for contracts for digital services and goods with digital elements (e.g. smartphones, smartwatches, smart TVs). Here, however, it is particularly important to be careful: Contrary to what the title of the VGG suggests, the regulations on the updating obligation are also applicable to contracts concluded between two entrepreneurs.
For other contracts concluded between entrepreneurs and consumers, such as contracts on real estate, barter agreements and contracts for work and services, the warranty law according to the ABGB continues to apply.
In order to know which specific warranty obligations must be complied with, it is therefore necessary in the future to first check whether the concluded contract falls under the VGG or under the ABGB. The classification of the specific contractual relationship can cause difficulties, e.g. if the contract contains both elements of a purchase contract and elements of a service contract. However, such a “mixed contract” will probably not fall within the scope of application of the VGG if the purchase contract element plays a merely subordinate role.
What exactly is a defect?
Previously, the transferor had to guarantee that the item had the so-called stipulated (i.e. contractually agreed) or usually assumed properties. In the future, in addition to the properties expressly agreed in the contract, the goods also have to have objectively required properties (as a minimum requirement, so to speak) (e.g. conformity with product samples, test version, etc.) – completely independent of the specific content of the contract.
These objectively required properties are specified in more detail in the VGG: Among other things, the goods or the digital service must be equipped with those accessories that the consumer can reasonably expect. What exactly the legislator understands by this, however, remains open or is possibly to be judged differently depending on the individual case. A practical example that has already caused media hype in the past: Smartphone manufacturers have recently delivered some of their new smartphones without charging cables or adapters. Here, one could think that these are accessories that a consumer can reasonably expect – and thus must be supplied. The question could also arise as to whether consumers can expect that the batteries are already included in toys, for example.
Do I have a “free hand” when agreeing the product features?
As in the past, it is difficult or almost impossible for entrepreneurs to deviate from the statutory warranty provisions in relation to a consumer. Thus, the new law also stipulates that it is only possible to deviate from the objectively required properties under difficult conditions:
Step 1: The consumer has to be specifically informed that a certain characteristic deviates / may deviate from the objectively required properties.
Step 2: The consumer has expressly and separately agreed to the deviation. This probably cannot be obtained by including such consents in the general terms and conditions or the text of the contract.
In the online area, such consumer consent can probably be achieved by means of checkboxes. If the consumer ticks the appropriate box, he or she acknowledges that deviations may occur. However, in stationary retail, such consent may well be more difficult to obtain. This is because – according to the legislator – consent has to be given through active and unambiguous behavior. An additional agreement or a marked paragraph in the text of the contract, which must be signed separately, are recommended.
How long does the duty to update apply?
The duty to update applies both to contracts concluded with consumers as well as to contracts concluded between entrepreneurs. For digital services and goods with digital elements, it provides for a subsequent performance obligation on the part of the entrepreneur, which did not exist in the previously applicable warranty law. In the future, the contractual partner has to be provided with those updates that are necessary to ensure that the goods or the digital service continue to comply with the concluded contract.
The duration of the obligation to provide updates depends on whether the digital service is to be provided under the contract on a one-time, permanent (e.g. e-book with unlimited right of use or e-bike) or on an ongoing basis in the sense of access (e.g. to a video portal).
In the case of one-time provision, the obligation to provide updates applies for as long as it can reasonably be expected according to the type and purpose of the respective product and the type of contract. In the case of an ongoing obligation to provide updates, the updating obligation applies for the entire agreed provision period. The law provides for a mandatory update obligation for goods with digital elements for a period of at least two years.
However, if the contract is concluded between entrepreneurs, it can be assumed that the statutory obligation to update can be limited or even excluded altogether (probably also in general terms and conditions).
How long can I assert defects?
Whereas previously warranty claims had to be asserted in court up to the expiry of the warranty period, in the future a distinction will be made between the warranty period and the limitation period. The deadlines apply both to contracts concluded with consumers and to contracts concluded between entrepreneurs.
The warranty period in the scope of the VGG is basically two years and starts from the date of handover. After expiration of the warranty period, an additional 3-month limitation period within which a defect may be asserted follows. If a defect occurs within the warranty period, the customer can assert their rights from the warranty until the end of the limitation period.
One thing is already clear: In practice, a number of questions will certainly arise that will ultimately have to be clarified by the courts. Regardless of this, it is advisable for entrepreneurs to familiarize themselves with the new legal basis and – also with legal support – to check their general terms and conditions and contract models with a view to the new warranty law and to adapt them to this.
This article is for general information only and does not replace legal advice. Haslinger / Nagele assumes no liability for the content and correctness of this article.
Note: This article appeared in the daily newspaper Die Presse on September 29, 2021.
29. September 2021
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