References without law book default to BGB.

Case - Missing Screws

Facts

Catherine (C) is from France. She bids on an office chair on Ebay.fr. When the ‘auction’ ends, she is the highest bidder. C transfers EUR 80 (= purchase price) to Munich-based private seller Sean’s (S) account. S ships the item.

After the chair has arrived, C tries to assemble it. Unfortunately, four necessary screws are missing.

C demands the missing parts from S. S states that he is not obliged to deliver any missing parts and definitely will not do so.

What rights does C have, and can she exercise them?

Solution

Slides Solution

Issue I: Cure

• Issue: Can C demand cure from S in line with §§ 437 No. 1, 439 I BGB?
• Application:
  • 1. Sale of goods contract: Not an auction according to § 156 BGB, since no auctioneer is acting. Sale of goods contract (§§ 145, 147 BGB)? → (+), S made an offer to the public to sell the chair for the highest price (offerta ad incertas personas). C accepted by bidding the highest price until the end of the auction period (§ 148 BGB).
  • 2. Material defect (§ 434 BGB): Subjective requirements? → (-). Objective requirements (§ 434 III BGB)? → (+), not suitable for normal use without screws (No. 1). The buyer may expect screws to be included (No. 2). Screws can be classified as expected accessories (No. 4).
  • 3. Existence when risk passed (§ 446 BGB): When the chair was handed over, the screws were already missing → (+).
  • 4. No exclusion: § 442 BGB (Knowledge of buyer) → (-). § 444 BGB (Exclusion of liability) → (-).
• Conclusion: C has the right to demand cure from S in line with §§ 437 No. 1, 439 I BGB.

Issue II: Revocation

• Issue: Can C revoke the sale of goods contract in line with §§ 437 No. 2, 323 I BGB?
• Application:
  • I. Prerequisites of § 437 BGB: → (+), see above.
  • II. Right of revocation (§ 323 I BGB):
    • 1. Cure is possible and due: → (+).
    • 2. Setting of a deadline: → (-), no deadline set. Exceptions? → (+), § 323 II No. 1 BGB: S states he will definitely not cure.
    • 3. Cure has not been performed: → (+).
    • 4. No triviality (§ 323 V 2 BGB): → (+), screws are necessary.
    • 5. No exclusion (§ 323 VI BGB): → (+), C is not responsible.
  • III. Declaration of revocation (§ 349 BGB): → (-), not yet.
• Conclusion: C has a right to revoke the contract. To do so, she has to declare the revocation to S (§ 349 BGB). The contract will then be transformed into a restitution obligation (§ 346 I BGB).

Issue III: Reduction of Price

• Issue: Can C reduce the price in line with §§ 437 No. 2, 441 BGB?
• Application:
  • I. Prerequisites of § 437 BGB: → (+).
  • II. Right of revocation: → (+); all requirements met (non-triviality requirement does not apply according to § 441 I 2 BGB).
  • III. Declaration of reduction (§ 441 I 1 BGB): → (-), not yet.
• Conclusion: C has a right to reduce the price. She must declare the reduction to S.

Issue IV: Damages instead of performance

• Issue: Can C claim damages instead of complete performance in line with §§ 437 No. 3, 280 I, III, 281 BGB?
• Application:
  • I. Prerequisites of § 437 BGB: → (+).
  • II. Requirements of § 280 I, III, 281 BGB:
    • 1. Obligation: → (+), sale of goods contract.
    • 2. Breach of duty (§ 281 BGB):
      • a) Bad performance: → (+), missing screws.
      • b) Setting a deadline: → (-). Exceptions? → (+), § 281 II Alt. 1 BGB: S definitely will not cure.
      • c) Not trivial (§ 281 I 3 BGB): → (+).
    • 3. Element of fault: → (+), assumed, & S does not perform cure intentionally.
    • 4. Damages: Condition without defect = C having the necessary screws. Damage = cost of necessary screws.
• Conclusion: C can demand damages in lieu of complete performance (§§ 437 No. 3, 280 I, III, 281 BGB).

Write-Up

Issue: Can C demand cure, revocation, price reduction, or damages from S under the sale of goods law (§ 437 BGB) regarding the missing screws?

1. Prerequisites of § 437 BGB
Issue: Are the general prerequisites of § 437 BGB met?
Rule: All buyer’s rights require a valid sales contract and a material defect existing at the passing of risk, without valid exclusions.
Application:

• Contract: An eBay auction is not an auction in the legal sense of § 156 BGB. Instead, S listing the chair is a binding offer to the highest bidder (offerta ad incertas personas, § 145 BGB). C accepted by being the highest bidder (§ 147 BGB). Thus, a valid sales contract (§ 433 BGB) exists.
• Material Defect: Under § 434 III BGB, a good has an objective material defect if it lacks the customary quality or is missing expected accessories. Office chairs require screws for assembly and normal use; missing them constitutes a material defect.
• Passing of Risk: The defect (missing screws) existed at the time the chair was handed over to the carrier and ultimately to C (§§ 446, 447 BGB).
• No Exclusion: C did not know about the defect (§ 442 BGB), and there is no liability exclusion agreement (§ 444 BGB).
  Conclusion: The prerequisites of § 437 BGB are fulfilled.

2. Right to Cure (§§ 437 No. 1, 439 BGB)
Issue: Can C demand cure from S?
Rule: The primary remedy is cure (Nacherfüllung), assuming the prerequisites of § 437 BGB are met.
Application: Since the prerequisites are met as established above, the primary remedy of cure is available.
Conclusion: C has a valid claim to demand the missing screws from S.

3. Right to Revoke (§§ 437 No. 2, 323 BGB) or Reduce Price (§§ 437 No. 2, 441 BGB)
Issue: Can C revoke the contract or reduce the price?
Rule: If cure fails or is rightfully refused, the buyer can move to secondary remedies. Generally, this requires setting a reasonable deadline for cure (§ 323 I BGB), unless a deadline is dispensable if the debtor seriously and definitively refuses performance (§ 323 II No. 1 BGB). The defect must not be trivial to revoke (§ 323 V 2 BGB). To exercise either right, a declaration is needed (§ 349 BGB or § 441 I BGB).
Application: C did not set a formal deadline. However, under § 323 II No. 1 BGB, a deadline is dispensable because S explicitly stated he “definitely will not” deliver the missing parts. Because the defect is not trivial (§ 323 V 2 BGB), C has the right to revoke the contract. Alternatively, she can choose to reduce the purchase price (§ 441 BGB).
Conclusion: C has the right to revoke the contract or reduce the price. She simply needs to declare her choice to S (§ 349 BGB or § 441 I BGB).

4. Damages in Lieu of Performance (§§ 437 No. 3, 280 I, III, 281 BGB)
Issue: Can C claim damages instead of performance?
Rule: Claiming damages instead of performance requires the same prerequisites as revocation. Under § 281 II Alt. 1 BGB, the deadline for cure is dispensable due to definitive refusal. Furthermore, the seller must have acted with fault (§ 276 BGB, § 280 I 2 BGB).
Application: As established, the deadline for cure is dispensable due to S’s definitive refusal. Furthermore, S acted with fault (§ 276 BGB) by intentionally refusing to cure the defect, and the legal presumption of fault (§ 280 I 2 BGB) is not rebutted.
Conclusion: C can demand the cost of acquiring the necessary screws as damages.