Definition and legal basis of “warranted characteristics”
The term warranted characteristics is a central legal concept in German civil law, particularly in the law of sale (§§ 434 ff. BGB) and the law governing contracts for work and services (§§ 633 ff. BGB). Warranted characteristics refer to specific, expressly agreed features or qualities of a contract subject or a work performance, whose existence the seller or contractor guarantees to the contractual partner. The legal significance of warranted characteristics lies in the fact that their assurance entails substantial warranty and liability consequences.
Distinction from the term “characteristic”
According to the German Civil Code (§ 434 para. 1 BGB), a distinction is made between the ordinary condition of an item and a warranted characteristic. While characteristics refer to general value-defining features and actual qualities of an item, warranted characteristics are specifically agreed features whose presence a contracting party actively declares to be guaranteed. Mere descriptions or general advertising statements are not sufficient for this purpose.
Requirements for a warranted characteristic
1. Agreement in the contract
The feature must be the subject of an express or at least recognizable, implied declaration of intent, so that the buyer or customer was entitled to rely on the guarantee of the presence of this characteristic.
2. Relevance for the intended purpose
The warranted characteristic must be essential for the usability or value of the item or the work. Common examples are warranties regarding durability, performance, year of manufacture, accident-free status, or quality.
3. Point in time
The characteristic must exist at the point in time of the transfer of risk (for sales) or acceptance (for contracts for work and services).
Legal effects of the assurance
1. Warranty rights
If a warranted characteristic is lacking, this generally constitutes a defect within the meaning of §§ 434, 633 BGB. The buyer or customer may then assert statutory warranty rights such as subsequent performance, withdrawal, reduction, or damages.
2. Damages for non-performance
According to §§ 280, 281, 283, 311a BGB, the buyer or customer can claim damages if a warranted characteristic is missing, especially for consequential damages resulting from the defect. Previously (§ 463 BGB old version), liability for warranted characteristics was even more stringent; today, this is governed by the general provisions.
3. Burden of proof
If a characteristic has been expressly warranted, the seller or contractor bears the burden of proof that the characteristic actually existed at the time of transfer of risk or acceptance, provided the contractual partner alleges its absence.
Examples of warranted characteristics
Warranted characteristics can be found in many areas of legal transactions, including: Sales contracts for motor vehicles: “accident-free”, “first registration 2024”, “authentic equipment” Real estate purchase: “Year of construction 2015”, “energy-efficient”, “free from legacy contamination”
* Contracts for work and services: “waterproof”, “VDE-certified installation”, “use of certified materials”
Consequences of the absence of warranted characteristics
1. Withdrawal from the contract
If a warranted characteristic is missing, the contractual partner may generally withdraw from the contract immediately and without setting a deadline.
2. Comprehensive damages
Liability also extends to damages that did not arise in the contract subject itself (consequential damages from defects), as long as these are connected to the warranted characteristic.
3. No exclusion of liability
A general exclusion of liability agreed in the contract is generally ineffective with respect to warranted characteristics (§ 444 BGB), unless an individual agreement has been made and there is no fraud.
Special features in business-to-business transactions
In commercial law and B2B transactions, warranted characteristics are particularly relevant in connection with commercial customs, standardized product descriptions, and quality assurance agreements. Often, these characteristics are documented in specifications or certificates.
Outlook: Developments in legislation and case law
The requirements and legal consequences in connection with warranted characteristics are subject to constant change through case law, for example regarding the distinction from mere agreements on quality. European regulations, particularly the Sale of Goods Directive and consumer protection provisions, also influence these developments.
Summary
Warranted characteristics are of significant importance in German civil law for the interpretation and execution of contracts. Their assurance serves legal certainty and the protection of trust and strengthens the warranty rights of the buyer or customer. The resulting claims are extensive and can extend to comprehensive compensation for damages if the warranted characteristic is lacking. The precise distinction from general descriptions of condition regularly remains a subject of judicial clarification.
Frequently Asked Questions
Who is legally responsible for the presence of warranted characteristics?
Liability for the presence of warranted characteristics generally lies with the seller or manufacturer, provided that a specific characteristic was expressly warranted within the framework of a contract—usually a sales contract or a contract for work and services. This warranty may be given expressly or impliedly, that is, through conduct or statements. In German law, in particular § 434 and § 633 BGB are relevant, which stipulate that for both sales and contracts for work and services, any deviation from a warranted characteristic constitutes a material defect. If a warranted characteristic is not fulfilled, the buyer or customer can be entitled to various rights: in addition to subsequent performance, often also claims for damages, withdrawal, or reduction. This is particularly relevant for public advertising claims or written assurances in contract documents. The legal consequences of a missing or faulty warranted characteristic often go beyond the usual defect claims and frequently include liability for compensation, including for damages resulting from the absence of the warranted characteristic.
How does a warranted characteristic differ from a mere statement of condition in legal terms?
Under German civil law, there is a distinction between a mere statement of condition and an express warranty. Statements of condition concern objective or usual features of a purchase item or work, whereas a warranted characteristic goes further: it constitutes a binding promise that a certain feature will in any case be present and is essential for the decision of the contractual partner. Legally, the warranted characteristic is usually associated with stricter liability: if the seller does not fulfill this warranty, they are liable for all resulting damages and not just for ordinary defect rights. Accordingly, the warranted characteristic is a strengthened element within the contractual relationship that can lead to liability for consequential damages (§ 463 sentence 2 old version BGB, now regulated in § 444 and § 276 para. 1 BGB).
What are the consequences for the contractual partner if a warranted characteristic is missing?
The absence of a warranted characteristic constitutes a special material defect and, in addition to the general warranty rights, in particular leads to stricter claims for compensation. The buyer or customer may, in addition to the regular rights such as withdrawal, reduction, or subsequent performance, claim compensation for consequential damages arising from the lack of the warranted characteristic—that is, for damages caused by its absence. This liability is independent of fault, meaning it does not require any negligence or fault on the part of the seller. Case law and statutes (§ 444 and §§ 280, 281 BGB) thus provide extensive protection to the contractual partner, as they must be able to rely on the expressly given assurance.
Are warranted characteristics also possible in used or customized items?
Warranted characteristics can also be expressly agreed for used goods or individually manufactured works. What is essential is always that the characteristic in question was bindingly assured by the seller or manufacturer and played a role in the decision of the buyer or customer. The warranty does not necessarily have to be made in writing; it can also be made impliedly during negotiations or via promotional materials. However, for used goods, it must be taken into account that warranted characteristics usually refer to the current condition or specific features at the time of delivery.
Who bears the burden of proof in disputes over a warranted characteristic?
If there is a dispute about whether a warranted characteristic was in fact agreed or exists, the burden of proof for the existence of the warranty lies with the buyer or customer. They must specifically set out and, if necessary, prove that a particular characteristic was the subject of an express or implied warranty from the seller or manufacturer. In addition, in case of dispute, the absence of the warranted characteristic must also be proven. Depending on the circumstances, witnesses, documents, or brochures may serve as evidence.
Do warranted characteristics also apply in B2B transactions, i.e., between businesses?
Legal protection for warranted characteristics is not limited to consumer relations but expressly also applies to transactions between businesses (B2B). However, it should be noted in this area that individual limitations of liability or clarifications regarding warranted characteristics are more frequently found in contracts. Nevertheless, expressly warranted characteristics are also generally a binding part of the contract here, the absence of which may lead to stricter claims for compensation.
Can warranted characteristics be excluded?
In principle, warranted characteristics can be excluded by contractual agreement, provided that no statutory prohibitions or consumer protection provisions oppose this. Especially in business-to-business transactions, it is possible to exclude or limit liability for certain warranted characteristics in standard terms (AGB) or individual contracts. However, strict requirements apply, especially if consumers are involved: in the B2C area, liability for damages resulting from injury to life, body, or health cannot be effectively excluded (§ 309 no. 7 BGB). Furthermore, an exclusion must not violate the transparency requirement.
