References without law book default to BGB.

Case - Skateboard Repair Default

Facts

Clara (C) buys a skateboard from retailer (and former pro skater) Tony (T) on Wednesday, May 3. On May 5, C discovers the skateboard’s axle is loose (which was like that from the beginning).

She returns the board to T’s shop the same day and asks him to fix the defect as soon as possible. T replies that fixing the board would be easy, but he is busy, so it might take a day or two. On the same day, C rents another skateboard for EUR 10 per day because she wants to compete in a skating event the following day.

After C has not heard from T for 10 days, she calls him on May 15 and insists on the repair by “tomorrow”. On May 20, C returns the rented board. On May 21, C gets her board back from T.

What rights does C have against T?

Solution

Slides Solution

• Issue: Can C demand compensation in addition to performance from T in line with §§ 437 No. 3, 280 I, II, 286 BGB?
• Rule: For this claim, the requirements of § 437 BGB and §§ 280 I, II, 286 BGB must be fulfilled.
• Application:
  • I. Prerequisites of § 437 BGB
    • 1. Sale of goods contract: → (+)
    • 2. Material defect (§ 434 BGB): Objective requirements (§ 434 III BGB)? → (+). A loose axle is unusual for skateboards (No. 1). The buyer may expect the axle not to be loose (No. 2).
    • 3. Existence when risk passed (§ 446 BGB): → (+), when the skateboard was handed over, the axle was already loose.
    • 4. No exclusion of buyer’s rights: → (+). § 442 BGB is not applicable in a Purchase of Consumer Goods (§ 475 III 2 BGB). § 444 BGB → no agreement.
  • II. Requirements of § 280 I, II, 286 BGB
    • 1. Obligation: → (+), sale of goods contract.
    • 2. Default according to § 286 BGB:
      • a) Due, enforceable claim: → (+), C could demand cure (§§ 437 No. 1, 439 BGB) since the requirements of § 437 BGB are met, and cure was possible.
      • b) Warning notice: Do we need one? Exceptions in § 286 II BGB? Is “might take a day or two” a period of time according to the calendar (§ 286 II No. 1 BGB)? → (-).
        Phone call on May 15 as warning notice? → (+), no form is required; requiring repair within one day is adequate.
      • c) No performance: → (+), cure was not performed on May 16 (it was performed on May 21). T is in temporary default.
    • 3. Element of fault (§ 280 I 2 / § 276 BGB): → (+), assumed fault since no rebuttal by T.
    • 4. Damages: → (+), renting costs for the other skateboard in the time between May 16 and May 20 (= 5 days * EUR 10 = EUR 50).
• Conclusion: C can demand the renting costs of EUR 50 for the other skateboard for the time between May 16 and May 20 from T as compensation in addition to performance in line with §§ 437 No. 3, 280 I, II, 286 BGB. (Note: the costs incurred prior to the warning notice are not covered!)

Write-Up

Issue: Can C demand compensation of EUR 50 for the rental costs from T under §§ 437 No. 3, 280 I, II, 286 BGB?

Rule: The claim requires that the prerequisites for buyer’s rights (§ 437 BGB) and the prerequisites for default of the debtor (§ 286 BGB) are met. Under §§ 437 No. 3, 280 I, II, 286 BGB, damages caused by delay in addition to performance require a due and enforceable claim, a warning notice unless dispensable, fault, and actual damages.

Application:
1. Prerequisites of § 437 BGB
C and T concluded a valid sales contract (§ 433 BGB). The loose axle is an objective material defect (§ 434 III BGB) because skateboards are expected to have tight, safe axles for normal use. The defect existed at the time of delivery (§ 446 BGB). There is no exclusion of rights; as a consumer purchasing from a commercial retailer, C’s rights cannot easily be excluded, and C’s potential negligence in not noticing the defect is irrelevant in a Purchase of Consumer Goods (§ 475 III 2 BGB). Thus, C has a valid claim for cure (Nacherfüllung) under §§ 437 No. 1, 439 BGB.

2. Default (§ 286 BGB)
To claim damages caused by delay in addition to performance, the debtor must be in default regarding the primary obligation (in this case, the duty to cure).

• C has a due and enforceable claim for cure.
• Default generally requires a formal warning notice (Mahnung) after the claim is due (§ 286 I BGB). C’s initial request on May 5 was not a warning notice because the claim for immediate cure was just arising. T’s statement that it “might take a day or two” is not precise enough to qualify as a specific calendar date under § 286 II No. 1 BGB, so a warning was not dispensable.
• On May 15, C called T and insisted on the repair “by tomorrow”. This constitutes a valid warning notice. T failed to deliver the repaired board by May 16, putting him in default starting from May 16.

3. Fault and Damages
Under § 280 I 2 BGB, T’s fault is legally presumed. He acted negligently by delaying the repair. The damages are the rental costs. However, T is only liable for damages that occurred after he was in default. He was in default starting May 16. C rented the board until May 20. Thus, T is liable for 5 days of rental costs (May 16, 17, 18, 19, 20) at EUR 10 per day, totaling EUR 50. The rental costs from May 5 to May 15 were incurred before default and cannot be claimed.

Conclusion: C can demand EUR 50 from T under §§ 437 No. 3, 280 I, II, 286 BGB.