This article was published on 17 Dec 2021. Software and regulations change, so please check details before you decide.
Traditionally, 1 January is a special date. Not only because of New Year, but also because of new rules that apply from the first day of the year. 2022 will be no different, and this time there are also legal changes with a direct impact on e-commerce: from 01.01.2022 a large number of new provisions apply that are intended to strengthen consumer rights.
In this context, a new definition of material defects in sales law and separate warranty rights for contracts concerning so-called “digital products” are particularly relevant. The term “digital products” covers both digital content, such as software, computer games, music or videos, and digital services, such as cloud storage or social media services.
Among other things, the new sections of the German Civil Code (BGB) contain a separate warranty regime for digital products that is closely modelled on sales law, as well as an obligation for the seller to provide updates. Accordingly, in a contract for digital products the business must provide the consumer with the necessary updates for the entire supply period.
A new subjective-objective definition of defects in sales law from 2022
The implementation of the EU Sale of Goods Directive brings significant changes to sales law. Until now, the concept of a defect in sales law was strongly subjective. This principle is now abolished and replaced by a mixed subjective-objective approach, which applies both to B2C contracts and to contracts concluded between businesses.
In future, the item sold must meet both subjective and objective requirements. First, as before, it must have the agreed characteristics and be suitable for the use assumed under the contract.
What is new, however, is that whether the item is free of defects is also assessed objectively. It must therefore be suitable for ordinary use and have the characteristics usual for comparable items.
In addition, a reversal of the burden of proof applies in sales law from 1 January 2022. Until now, for faults or defects arising within six months of purchase, it was presumed that the defect already existed at the time of purchase. This period is now extended to 12 months. For consumers, the advantage is that in the first year after receiving the goods, any fault that occurs is presumed to be an initial material defect, so warranty rights can be asserted.
As an online retailer, you need to address the changes
The new rules apply to purchase contracts concluded from 01 January 2022. Sales law is adapting to the market and consumer rights are being strengthened. As an online shop operator, you should therefore make sure to familiarise yourself with the upcoming rules to avoid nasty surprises in the new year.
A careful review and adjustment of your contracts, guarantee statements and general terms and conditions is definitely advisable, as otherwise you risk legal warnings from competitors and consumer protection associations.
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