Gewährleistung in Germany: Your § 437 BGB Rights When a Purchase Is Defective

When something you bought in Germany turns out to be faulty, the right you are looking for is called Gewährleistung. It is the seller's statutory liability for defects, it sits in the Bürgerliches Gesetzbuch, and against a consumer it cannot be signed away in the small print.

It is easy to confuse with the other word you will see on the box, Garantie. A Garantie under § 443 BGB is a voluntary promise, usually made by the manufacturer, on whatever terms that manufacturer chooses. The two run alongside each other, and the statutory one is the one the shop cannot take away.

Information last verified on 20 July 2026. This page provides general legal information and does not constitute legal advice in an individual case.

This page works through what counts as a defect under the version of § 434 BGB that has applied since the 2022 reform, the order in which the remedies in § 437 BGB have to be used, the two year period in § 438 BGB, the twelve month reversal of the burden of proof in § 477 BGB and what changes once it lapses, how used goods and private sales differ, and the practical sequence of steps a buyer actually takes.

Two different things: Gewährleistung and Garantie

Gewährleistung is not something a seller offers you. It is a liability the law imposes. § 433 Abs. 1 Satz 2 BGB obliges the seller to hand over the item free of material and legal defects, and § 437 BGB then lists what the buyer can do if it is not.

Garantie is the opposite in structure. § 443 Abs. 1 BGB describes it as an undertaking given by the seller, the manufacturer or another third party, in a statement or in advertising available before or at the conclusion of the contract, in addition to the statutory liability for defects. The person who gave it, the Garantiegeber, is the person the buyer holds to it.

Two consequences follow, and they are the ones most product pages blur. First, a Garantie can never reduce the statutory rights, because § 443 BGB gives the buyer the rights under the Garantie without prejudice to the statutory claims. Second, a Garantie can be shorter, longer, narrower or broader than the statutory position, because its scope is whatever its own terms say.

Where a Garantie promises that the item will keep a certain quality for a certain period, § 443 Abs. 2 BGB calls that a Haltbarkeitsgarantie and attaches a presumption: a defect appearing during that period is presumed to trigger the rights under the Garantie. That is a genuinely useful presumption, but it belongs to the Garantie, not to the statutory scheme.

A practical way to hold the two apart is to ask who you are complaining to. Gewährleistung points at the shop that sold you the item. A manufacturer Garantie points at the manufacturer, which is why a shop sometimes tries to send the buyer to the maker. Within the statutory period the seller remains the correct addressee for a Gewährleistung claim.

What counts as a defect under § 434 BGB

§ 434 BGB was rewritten with effect from 1 January 2022 when Germany transposed the EU Warenkaufrichtlinie, and the new structure matters. An item is free of material defects if, at the transfer of risk, it meets the subjective requirements, the objective requirements and the assembly requirements.

The subjective requirements in § 434 Abs. 2 BGB are the ones the parties actually agreed: the agreed quality, fitness for the use assumed under the contract, and delivery with the agreed accessories and instructions, including assembly and installation instructions. Agreed quality expressly covers type, quantity, quality, functionality, compatibility, interoperability and other features the parties set requirements for.

The objective requirements in § 434 Abs. 3 BGB are the important addition. Independently of what was agreed, the item must be fit for ordinary use, must have the quality that is usual in items of that kind and that the buyer can expect, must match any sample shown before the contract, and must come with the packaging, accessories and instructions the buyer can expect to receive. Usual quality here expressly includes durability, functionality, compatibility and safety.

Public statements count. § 434 Abs. 3 Satz 1 Nr. 2 Buchstabe b BGB brings in statements made by the seller or by another link in the contract chain, in particular in advertising or on the label, so a claim printed on the box becomes part of the standard the item has to meet. The seller escapes that only in the narrow cases in § 434 Abs. 3 Satz 3 BGB, for example where the statement had been corrected in an equivalent way before the contract or could not have influenced the purchase decision.

Two more rules complete the picture. § 434 Abs. 4 BGB treats botched assembly as a defect where the poor result stems from the seller's work or from faulty instructions the seller supplied. § 434 Abs. 5 BGB puts delivery of the wrong item on the same footing as a defect, so an aliud delivery is handled through the same remedies.

For goods with digital elements, a smart watch or a connected appliance, §§ 475b and 475c BGB add an update obligation on top. § 475b Abs. 4 Nr. 2 BGB requires updates needed to keep the goods in conformity for the period the consumer can expect given the nature and purpose of the goods, and § 475c Abs. 2 BGB sets a floor of two years from delivery where continuous provision of the digital elements was agreed. Purely digital products, a streaming subscription or downloaded software, sit in their own regime in §§ 327 ff. BGB rather than in the sales rules.

The order of remedies in § 437 BGB

§ 437 BGB does not offer a menu. It offers a sequence, and getting the sequence wrong is the single most common way a buyer loses an otherwise good claim.

Step one is Nacherfüllung. § 439 Abs. 1 BGB lets the buyer choose between removal of the defect (repair) and delivery of an item free of defects (replacement). The choice belongs to the buyer, not to the shop. § 439 Abs. 2 BGB puts the necessary costs on the seller, naming transport, travel, labour and material costs, and § 439 Abs. 3 BGB adds the cost of removing the defective item and fitting the replacement where the buyer had already installed it in line with its nature and purpose.

The seller has one escape. Under § 439 Abs. 4 BGB the seller may refuse the form the buyer chose if it is only possible at disproportionate cost, weighing the value of the item without the defect, the significance of the defect and whether the other form would work without significant inconvenience for the buyer. The claim then narrows to the other form rather than disappearing.

In a consumer sale § 475 Abs. 5 BGB adds a timing rule: the trader must carry out the Nacherfüllung within a reasonable period from being told about the defect and without significant inconvenience to the consumer, taking account of the nature of the goods and the purpose the consumer needs them for. § 475 Abs. 4 BGB lets the consumer demand an advance for costs that fall on the trader.

Step two is Rücktritt or Minderung. Under § 437 Nr. 2 BGB these come into play through §§ 440, 323 and 326 Abs. 5 BGB, and the normal route is that the buyer set a reasonable deadline for Nacherfüllung under § 323 Abs. 1 BGB and it passed without success.

§ 440 BGB removes the need for a deadline in defined cases: where the seller has refused both forms of Nacherfüllung under § 439 Abs. 4 BGB, or where the form owed to the buyer has failed or is unreasonable for the buyer. § 440 Satz 2 BGB adds the rule people usually half remember: a repair is deemed to have failed after the second unsuccessful attempt, unless something else follows in particular from the nature of the item, the nature of the defect or the other circumstances. It is a default, not an absolute two attempts rule.

Step three is damages. § 437 Nr. 3 BGB routes a damages claim through §§ 440, 280, 281, 283 and 311a BGB, or a claim for wasted expenditure through § 284 BGB. Damages run alongside a price reduction rather than replacing it, which is how a buyer recovers a consequential loss the reduced price does not cover.

Rücktritt or Minderung: which one is actually available

Rücktritt unwinds the contract, item back, money back. Minderung keeps the item and cuts the price. The choice is the buyer's, but only one of them survives a small defect.

§ 323 Abs. 5 Satz 2 BGB blocks rescission where the breach of duty is insignificant. § 441 Abs. 1 Satz 2 BGB expressly states that this bar does not apply to a price reduction. So a cosmetic flaw on an otherwise working appliance will often be too minor to justify handing the whole thing back, while still supporting a reduction in price.

In a consumer sale, § 475 Abs. 6 BGB puts the cost of returning the goods on the trader in a rescission case, and treats the consumer's proof of dispatch as equivalent to the return itself. That matters for a bulky item where the return freight would otherwise swallow the refund.

A worked Minderung: the 700 euro dishwasher

§ 441 Abs. 3 BGB does not subtract a repair estimate. It reduces the price in the ratio which, at the time the contract was concluded, the value of the item free of defects would have borne to its actual value, estimated where necessary.

Take a dishwasher bought in a sale for 700 euro. Its market value free of defects at the time of the contract was 800 euro. The drying function never worked, and the item with that defect is worth 640 euro.

The ratio is 640 to 800, that is 80 percent. The reduced price is 80 percent of 700 euro, so 560 euro, and the seller repays the difference of 140 euro under § 441 Abs. 4 BGB. Note what the formula preserved: the buyer keeps the benefit of the bargain, because the 100 euro discount already negotiated is carried through proportionally instead of being wiped out. A flat subtraction of the 160 euro value gap would have produced 540 euro and quietly handed the buyer more than the statute allows.

The declaration itself is informal. § 441 Abs. 1 Satz 1 BGB requires only a declaration to the seller, so a dated written message setting out the defect and the reduced figure does the job and creates the record.

The two year period and the twelve month reversal

These are two different clocks and mixing them up is the classic expat error.

The first clock is limitation. § 438 Abs. 1 Nr. 3 BGB gives claims for defects in ordinary movable goods two years, and § 438 Abs. 2 BGB starts that running on delivery of the item. Items used for a building in the usual way, and buildings themselves, get five years under § 438 Abs. 1 Nr. 2 BGB. Where the seller fraudulently concealed the defect, § 438 Abs. 3 BGB switches to the regular limitation period in § 195 BGB, three years, running from the end of the year in which the buyer learned or should have learned of the claim under § 199 Abs. 1 BGB.

The second clock is evidence, and it is much shorter. § 477 Abs. 1 Satz 1 BGB provides that if a state of the goods deviating from §§ 434 or 475b BGB shows itself within one year of the transfer of risk, the goods are presumed to have been defective already at that point, unless the presumption is incompatible with the nature of the goods or of the defect. That period was extended from six months to twelve months with effect from 1 January 2022. § 477 Abs. 1 Satz 2 BGB keeps living animals at six months, and § 477 Abs. 2 BGB runs a longer presumption for the digital elements of goods with digital elements.

What changes at the twelve month mark is only who has to prove what. The claim still exists for the full two years. After twelve months it is the buyer who must show that the defect was already present at delivery rather than caused later by use, which in practice often means a repair report or an expert opinion.

A simple sequence makes it concrete. A laptop delivered on 10 March 2026 develops a screen fault in December 2026: inside the twelve months, so the trader carries the burden of showing the fault was not there at delivery. The same fault appearing in September 2027 is still inside the two years under § 438 BGB, so the claim is live, but the buyer now carries the burden of showing it was present at delivery. The same fault appearing in May 2028 is outside § 438 altogether, and only a manufacturer Garantie, if one exists and still runs, would help.

Used goods, and why a shortened period needs a specific clause

Buying used from a trader is still a Verbrauchsgüterkauf under § 474 Abs. 1 BGB, so the mandatory regime applies. What changes is that the parties can compress the limitation period further than for new goods, but only within limits and only with a specific procedure.

§ 476 Abs. 2 BGB permits an agreement shortening the limitation period for the § 437 claims to no less than two years for goods generally, and no less than one year for used goods. The agreement is effective only if the consumer was specifically informed of the shortening before making the contractual declaration, and the shortening was expressly and separately agreed in the contract. A line buried in general terms and conditions is not an express separate agreement.

There is a parallel mechanism for quality. § 476 Abs. 1 Satz 2 BGB allows a departure from the objective requirements of § 434 Abs. 3 or § 475b Abs. 4 BGB only where the consumer was specifically informed before the contractual declaration that a particular feature deviates from the objective requirements, and the deviation was expressly and separately agreed. That is how a legitimate listing of a used phone with a scratched back or a degraded battery works: the deviation is named and separately agreed, so it is not a defect. A generic sold as seen phrase does not achieve it.

Two further points on used goods. § 434 Abs. 3 BGB measures the objective standard against what is usual in goods of that kind, so age and mileage are already built into the yardstick rather than being an exception to it. And § 475 Abs. 3 Satz 2 BGB disapplies § 442 BGB to consumer sales, so the ordinary rule that a buyer who knew of a defect loses their rights does not apply in the same way when the seller is a trader. § 476 Abs. 4 BGB closes the obvious escape route by extending the protection to arrangements designed to circumvent it.

Private sales: eBay Kleinanzeigen and the exclusion clause

This is where relocating buyers get caught. The mandatory regime in §§ 474 to 476 BGB applies to a Verbrauchsgüterkauf, which § 474 Abs. 1 BGB defines as a consumer (§ 13 BGB) buying goods from a trader (§ 14 BGB). Two private individuals do not make that combination.

In a genuine private sale the statutory rules of §§ 434 to 441 BGB still form the starting position, but nothing makes them mandatory, so the parties can and routinely do exclude liability for defects entirely. The German formulations you will see in a listing, such as Privatverkauf, keine Gewährleistung, are attempts to do exactly that, and against another private individual an effective exclusion clause generally works.

§ 444 BGB sets the limit. A seller cannot rely on an agreement excluding or limiting the buyer's rights for a defect to the extent that the seller fraudulently concealed the defect or gave a Beschaffenheitsgarantie. A private seller who knew the phone had water damage and stayed silent about it does not get to hide behind the exclusion line, and a private seller who affirmatively stated the battery is new has given a quality assurance that the exclusion cannot swallow.

Three further practical points. The disclaimer only works if the seller really is a private person, and someone who sells continuously and in volume may be a trader within § 14 BGB regardless of the label on the listing. § 477 BGB does not apply to a private sale at all, so there is no twelve month presumption to lean on. And the twelve month floor and the two year period in § 476 Abs. 2 BGB are irrelevant here, since that provision only bites in a consumer sale.

Note the separate point that a right of withdrawal is a different thing again, tied to distance and off premises contracts rather than to defects. See the right of withdrawal for how that interacts with a faulty item bought online.

What a buyer actually does, step by step

1. Fix the date of delivery. The § 438 BGB two year clock and the § 477 BGB twelve month clock both run from it, so keep the receipt, the delivery note or the order confirmation email.
2. Describe the defect, not the remedy you want first. Write to the seller, state what the item does or fails to do, and say when you first noticed it.
3. Choose repair or replacement and say so. § 439 Abs. 1 BGB gives that choice to the buyer, so name it. A message that only reports a fault leaves the shop free to pick.
4. Set a reasonable deadline in writing. This is the § 323 Abs. 1 BGB step that unlocks Rücktritt and Minderung later. A concrete calendar date is better than a vague soon.
5. Refuse to pay for transport or labour. § 439 Abs. 2 BGB puts those costs on the seller, and § 475 Abs. 4 BGB lets a consumer request an advance rather than fronting the money.
6. Count the repair attempts. § 440 Satz 2 BGB treats a repair as failed after the second unsuccessful attempt unless the circumstances say otherwise, which is the trigger for moving to the next stage.
7. Then declare Rücktritt or Minderung in writing. Both are declarations to the seller. State which one, state the figure if it is a Minderung, and keep the copy.
8. Check the Garantie separately. A manufacturer Garantie under § 443 BGB runs on its own terms and may outlast the two years in § 438 BGB, so it is worth reading even where the statutory route has closed.

None of that is a guarantee of a particular outcome, and a seller who disputes whether the defect existed at delivery may force the point to be decided on evidence. Where a trader ignores a properly set deadline, the next question is usually enforcement rather than substance, and a formal demand from a lawyer carries its own cost consequences. See Abmahnung and formal warning letters for how that instrument works in German practice, and the German consumer law hub for the neighbouring topics. Broader background on German law for English speakers sits at German law explained.

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