In our legal practice, we often encounter clients' requests for a clear limitation of liability in the context of purchase contracts, contracts for work and services and supply contracts.
This desire is all too understandable, but not easy to implement as it is restricted by a large number of legal requirements. For example, warranty claims cannot simply be excluded and it is even more difficult to limit liability in the area of the so-called Product Liability Act. Here, liability for the manufacturer[1] cannot be limited in principle. One possible way out of this dilemma is to limit the content of the contract via the so-called performance specification. If the manufacturer describes and defines the properties, possible uses and performance features of its product in a restrictive manner, certain "faults" or "defects" no longer fall under the warranty liability of product liability law, as these alleged faults or defects are no longer covered by the scope of the contractually described properties. A clever description of performance can therefore exclude or at least limit the applicability of product liability law and certain warranty obligations.
However, for such a "restrictive performance description" the limit of legal effectiveness is reached if the manufacturer/supplier/seller quite obviously only wants to evade his liability obligation by doing so. For example, it is ineffective if a normal, roadworthy used vehicle is sold by a professional used car dealer at a normal market price under the term "hobbyist vehicle" with the expectation of thereby excluding any warranty rights (see OLG Oldenburg 8 O 1069/03). It is therefore important to choose the wording in such a way that the limit of the effectiveness of the service description is not exceeded in the individual case and liability is nevertheless reasonably limited.
Lawyer Jenny Wieske
[1 ] The manufacturer within the meaning of the Product Liability Act is also the person who places the product on the market (European Economic Area) for commercial purposes.