First of all, the good news: The changes to the German Civil Code, which are due to an amendment to the Construction Contract Law (!), only apply to contracts concluded from January 1, 2018. Contracts concluded before this date will still be governed by the old law.
It essentially concerns installation and removal costs when carrying out rectification work, new regulations on the topics of payments on account and acceptance, termination and partial termination as well as obligations to cooperate at the end of the cooperation. Once again, the difficulty lies in transferring the provisions of construction contract law to the world of IT. After all, there is no separate law on contracts for work and services for IT companies.
1) Change in sales law - Important change!
a.) Claims for rectification
Section 439 of the German Civil Code (BGB) is amended to adapt to the case law of the ECJ to the effect that the buyer is entitled to compensation for expenses caused by the installation or removal of the defective item, irrespective of fault. The issue became relevant in the case of a fitted kitchen. In the cases decided by the ECJ, a part in a fitted kitchen was installed defectively, and costs are incurred when things are installed and removed in a fitted kitchen. The question now was whether the installation and removal costs were to be borne by the tradesman. The ECJ answered this question in the affirmative for the area of consumer law. The BGH has determined that this case law of the ECJ does not apply to commercial transactions. The legislator has now followed the case law of the ECJ for consumer transactions in the new Section 439 BGB, but - and this is a very important change - gives the craftsman a right of recourse against the supplier or producer for reimbursement of these costs. And this even applies to B2B. This regulation is important for software dealers because customers can now assert claims if releases under software maintenance contracts lead to defects. According to the law, the costs for installation, configuration and testing are now always borne by the IT company if defective software is installed. However, if you install software from another manufacturer, you can hold the supplier or manufacturer harmless. The same applies, of course, to IT system houses that sell hardware and/or have concluded maintenance contracts with the customer.
I will discuss whether this provision can be waived in general terms and conditions in a later article.
b.) Recourse
And this change in Section 478 II BGB also applies to the B2B area. This is a very significant change. It affects the producers of hardware and software, who were previously not liable for the installation or removal costs of hardware; they were not liable at all by way of recourse for defects arising from sales contracts in B2B contracts. I will come back to this important change in a later blog. It means that the limitation period for retailers' claims against the supplier/producer is now regulated in favor of the retailer.
