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Abstract:
The Law on the Modernization of the Law of Obligations has introduced a large number of provisions into the German Civil Code. One of these provisions has kept German courts particularly busy during the last years: § 476. The provision implements Art. 5 (3) of the Consumer Sales Directive and provides that any lack of conformity which becomes apparent within six months of delivery of the goods is presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity. The presumption has proved to be difficult to apply in practice: the German Supreme Court alone as issued eight – highly controversial – decisions. And numerous articles, case notes and commentaries have analyzed and criticized each and every one of them. It is therefore surprising to see that both the German Supreme Court and the German literature refrain from exploiting one very obvious source of information that might help to deal with § 476: comparative law. Even though Art. 5 (3) of the Consumer Sales Directive has been implemented in all member states except for Lithuania nobody has endeavoured to analyse its application in other countries to this date. The above article tries to fill this gap and looks at § 476 from a comparative perspective. It finds that courts across Europe apply the provision in the same way as the German Supreme Court regarding the exclusion and the rebuttal of the presumption. However, regarding the scope of the presumption the German Supreme Court stands alone with its strict interpretation. In fact, no other court in Europe refuses to apply the presumption in cases in which a defect that occurs after delivery might be the result of a basic defect present at the time of delivery. The article, therefore, concludes that the German Supreme Court should rethink its position regarding the scope of the presumption and refer the next case to the ECJ.
