1896de Book2 Chapter07 Title01 Part02

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK II. Law of Obligations.

← Previous Page | Next Page →

Chapter VII. Particular Kinds of Obligations.

Title I. Sale, Exchange.

Section 459.

• [I] The seller of a thing warrants the purchaser that, at the time when the risk passes to the purchaser, it is free from defects which diminish or destroy its value or fitness for its ordinary use or the use presupposed in the contract. An insignificant diminution in value or fitness is not taken into consideration.
• [II] The seller also warrants that, at the time the risk passes, the thing has the promised qualities.

Section 460.

• A seller is not responsible for a defect of quality in the thing sold if the purchaser knew of the defect at the time of entering into the contract. If a defect of the kind specified in 459, par. 1 has remained unknown to the purchaser in consequence of gross negligence, the seller is responsible, unless he has guaranteed that the thing is free from the defect, only if he has fraudulently concealed it.

Section 461.

• A seller is not responsible for a defect of quality in the thing sold if it is sold by public auction under the law of pledge and designated as a pledge.

Section 462.

• On account of a defect for which the seller is responsible under the provisions of 459, 460, the purchaser may demand annulment of the sale (i.e, cancellation), or reduction of the purchase price (i.e., reduction).

Section 463.

• If a promised quality in the thing sold was absent at the time of the purchase, the purchaser may demand compensation for non-performance, instead of cancellation or reduction. The same rule applies if the seller has fraudulently concealed a defect.

Section 464.

• If the purchaser accepts a defective thing although he knows of the defect, he is entitled to the claims specified in 462, 463, only if on acceptance he reserves his rights on account of the defect.

Section 465.

• Cancellation or reduction is effected if the seller, on demand by the purchaser, declares his consent thereto.

Section 466.

• If the purchaser asserts against the seller a defect of quality, the seller may offer cancellation and require him to declare within a fixed reasonable period whether he demands cancellation. In such a case cancellation may be demanded only before the expiration of the period.

Section 467.

• The provisions of 346 to 348, 350 to 354, 356, applicable to the contractual right of rescission apply mutatis mutandis to cancellation ; in the case provided for by 352, however, cancellation is permitted if the defect has not been discovered until the remodelling of the thing. The seller shall also reimburse the purchaser for the expense of the contract.

Section 468.

• If the seller of a piece of land promises the purchaser certain specified dimensions, he is responsible for the dimensions as for a promised quality. The purchaser may, however, demand cancellation on account of the absence of the promised dimensions only if the deficiency is so considerable that the fulfilment of the contract is of no use to him.

Section 469.

• If of several things sold some only are defective, cancellation may be demanded only in respect of these, even if an aggregate price has been fixed for all the things. If, however, the things were sold as belonging together, either party may demand that the cancellation be extended to all the things, if the defective things cannot be separated from the others without injury to him.

Section 470.

• Cancellation on account of a defect of quality in the principal thing extends also to an accessory. If the accessory thing is defective, cancellation may | be demanded only in respect of such accessory.

Section 471.

• If, in the case of a sale of several things for an aggregate price, cancellation is effected only with regard to some of them, the aggregate price shall be reduced in the proportion which at the time of the sale the aggregate value of the things in a condition free from defects would have borne to the value of the things unaffected by the cancellation.

Section 472.

• [I] In case of reduction the purchase price shall be reduced in the proportion which at the time of the sale the value of the thing in a condition free from defect would have borne to the actual value.
• [II] If, in the case of a sale of several things for an aggregate price, reduction is effected only in respect of some of them, then in reducing the price the aggregate value of all the things shall be taken as a basis.

Section 473.

• If, besides the purchase price fixed in money, other considerations are stipulated for which have non-fungible things as their objects, these considerations, in the cases provided for by 471, 472, shall be estimated in money according to their value at the time of the sale. The reduction of the purchaser's counter-consideration is made out of the price fixed in money; if this is less than the amount to be deducted, the seller shall make good to the purchaser the balance.

Section 474.

• [I] If there are several parties on either side, reduction may be demanded by each and against each.
• [II] If reduction demanded by one of the purchasers is effected, cancellation is not permitted.

Section 475.

• If reduction is made on account of one defect, the right of the purchaser to demand cancellation or reduction on account of another defect is not barred.

Section 476.

• An agreement whereby the obligation of the seller for warranty against defects of quality is released or limited is void, if the seller fraudulently conceals the defect.

Section 477.

• [I] The claim for cancellation or reduction and the claim for compensation on account of the absence of a promised quality are barred by prescription, unless the seller has fraudulently concealed the defect, in the case of moveables in six months after delivery ; in the case of land in one year after the transfer. The period of prescription may be extended by contract.
• [II] If the purchaser moves for judicial admission of evidence for the purpose of preserving the evidence, the prescription is thereby interrupted. The interruption continues until the termination of the proceedings. The provisions of 211, par. 2, and of 212 apply mutatis mutandis.
• [III] The suspension or interruption of prescription of one of the claims specified in par. 1 results also in the suspension or interruption of prescription of the other claims.

Section 478.

• [I] If the purchaser has notified the seller of the defect or forwarded notice thereof to him before the claim for cancellation or reduction is barred by prescription, he may, even after the lapse of the period of prescription, refuse to pay the purchase price, in so far as he would be entitled to do so by reason of cancellation or reduction. The same rule applies if the purchaser moves for judicial admission of evidence for the purpose of preserving the evidence before the lapse of the period of prescription, or, in an action commenced between him and a subsequent acquirer of the thing on account of the defect, has given notice of the action to the seller.
• [II] If the seller has fraudulently concealed the defect, notice or an act which according to par. 1 is equivalent to notice is not necessary.

Section 479.

• The claim for compensation may be set off after the lapse of the period of prescription only if the purchaser has previously done one of the acts specified in 478. This limitation does not arise if the seller has fraudulently concealed the defect.

Section 480.

• [I] The purchaser of a thing designated only by species may demand, instead of cancellation or reduction, that instead of the defective thing one free from defect be delivered to him. The provisions of 464 to 466, 467, sentence 1, and 469, 470, 474 to 479, applicable to cancellation, apply mutatis mutandis to this claim.
• [II] If, at the time at which the risk passes to the purchaser, a promised quality was absent, or if the seller has fraudulently concealed a defect, the purchaser may demand compensation for non-performance instead of cancellation, reduction, or delivery of a thing free from defect.

Section 481.

• The provisions of 459 to 467, 469 to 480 apply to the sale of horses, asses, mules, hinnies, cattle, sheep and swine only in so far as it is not otherwise provided by 482 to 492.

Section 482.

• [I] The seller is responsible only for certain defects (i.e., principal defects), and then only if they are discovered within specified periods (i.e., periods of warranty).
• [II] The principal defects and the periods of warranty are prescribed by an Imperial Ordinance to be issued with the consent of the Federal Council. Its provisions may be extended and modified in the same manner.

Section 483.

• The period of warranty begins to run from the expiration of the day on which the risk passes to the purchaser.

Section 484.

• If a principal defect is discovered within the period of warranty, it is presumed that the defect was already present at the time when the risk passed to the purchaser.

Section 485.

• The purchaser loses the rights belonging to him on account of the defect if he does not, at the latest, within two days after the expiration of the period of warranty, or, where the animal has been slaughtered or has perished in any other manner before the expiration of the period, within two days after the death of the animal, notify the seller of the defect or send notice thereof to him, or bring an action against the seller on account of the defect, or give him notice of intention to bring the action, or move for judicial admission of evidence for the purpose of preserving the evidence. The rights are not lost if the seller has fraudulently concealed the defect.

Section 486.

• The period of warranty may be extended or shortened by contract. The period agreed upon takes the place of the statutory period.

Section 487.

• The provisions relating to the obligation of the seller in respect of warranty against defects of quality apply mutatis mutandis to other contracts which are for alienating or for giving a charge upon a thing for valuable consideration.

Section 488.

• In case of cancellation the seller shall also compensate the purchaser for the expense of fodder and care ; of veterinary examination and treatment; and, in case of necessity, the expense of slaughter and removal of the animal.

Section 489.

• If an action on the claim for cancellation is commenced, sale by public auction and lodgment of the proceeds shall be ordered by provisional decree, obtained by either party, as soon as inspection of the animal is no longer necessary.

Section 490.

• [I] The claim for cancellation and the claim for compensation on account of a principal defect, the absence of which the seller has warranted, are barred by prescription in six weeks after the expiration of the period of warranty. For the rest the provisions of 477 remain unaffected.
• [II] A period of six weeks takes the place of the periods specified in 210, 212, 215.
• [III] The purchaser may refuse to pay the purchase price even after the prescription of the claim for cancellation. A set-off of the claim for compensation is not subject to the limitation specified in 479.

Section 491.

• The purchaser of an animal designated only by species may demand, instead of cancellation, that in place of the animal one free from defect be delivered to him. The provisions of 488 to 490 apply mutatis mutandis to such claim.

Section 492.

• If the seller gives a warranty against any defect other than a principal defect, or if he warrants a particular quality in the animal, the provisions of 487 to 491, and, if a period of warranty is agreed upon, the provisions also of 483 to 485 apply mutatis mutandis. The prescription specified in 490 begins to run, if a period of warranty is not agreed upon, from the delivery of the animal.

Section 493.

• The provisions relating to the obligation of the seller in respect of warranty against defects of quality apply mutatis mutandis to other contracts which are for alienating or for giving a charge upon a thing for valuable consideration.