Die Rechtserklärer e.V.

Case law notes on the law of sale

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Case law notes on important decisions in the field of the law of sale

by Johanna Schmidt-Räntsch

Below you will find links to important decisions relating to the law of sale. Decisions that are essential reading are marked with the letter ‘L’. The decisions are being translated into English in due course.

I. Decisions of the European Court of Justice

No entries at present.

II. Decisions of the Federal Court of Justice

Section 320 of the German Civil Code (BGB) – in this case: defence of defect

LJudgment of 14 February 2020 – V ZR 11/18, BGHZ 225, 1: Distinction between the sale of goods and the sale of rights; purchase of a co-ownership share in a plot of land as a sale of goods; full purchaser’s rights even when purchasing a co-ownership share; defence of defects; purchaser’s inability to act where the other co-owner(s) refuse to cooperate

Section 433 BGB – Fundamental obligations in the sale of tangible property

Distinction between the sale of property and the sale of rights

LJudgment of 14 February 2020 – V ZR 11/18, BGHZ 225, 1: Distinction between the sale of property and the sale of rights; purchase of a co-ownership share in a plot of land as a sale of property; full purchaser’s rights even when purchasing a co-ownership share; defence of defects; purchaser’s inability to act where the other co-owner(s) refuse to cooperate

Section 434 BGB – quality owed

Concept of quality

LJudgment of 15 June 2016 – VIII ZR 134/15, ZIP 2016, 1528: Broad concept of quality; manufacturer’s warranty as a quality of goods
LJudgment of 22 April 2016 – V ZR 23/15, ZfIR 2016, 785: Year of construction as a quality of a building; a quality to be expected on the basis of public statements is also owed by operation of law in the purchase of land; a general exclusion of liability also covers this

Agreement on a quality

LJudgment of 29 November 2006 – VIII ZR 92/06, BGHZ 170, 86: Requirements for an agreement on a quality; distinction between agreed and guaranteed quality; interpretation of a general exclusion of liability
Judgment of 25 January 2019 – V ZR 38/18, ZfIR 2019, 755: Requirements for a (negative) agreement on quality; a general disclaimer of liability also covers a quality that can be expected on the basis of public statements

Usual quality

LJudgment of 11 November 2022 – V ZR 213/21, ZfIR 2023, 90: Full rights in respect of defects concerning the common property also apply to the purchaser of a flat; the association of flat owners has no right to bring proceedings under Section 9a para. 2 of the German Condominium Act (WEG); Contamination of a plot of land with pollutants constitutes a deviation from the usual condition, at least where there is harmful soil alteration or a contaminated site within the meaning of the Federal Soil Protection Act in accordance with public law criteria; concealment of a known suspicion of a contaminated site constitutes fraud, including with regard to the actual contamination

Section 437 BGB – the purchaser’s rights in respect of defects

LJudgment of 14 February 2020 – V ZR 11/18, BGHZ 225, 1: Distinction between the sale of property and the sale of rights; purchase of a co-ownership share in a plot of land as a sale of property; full purchaser’s rights even when purchasing a co-ownership share; defence of defects; purchaser’s inability to act where the other co-owner(s) refuse to cooperate
LJudgment of 11 November 2022 – V ZR 213/21, ZfIR 2023, 90: Full rights in respect of defects concerning the common property also apply to the purchaser of a flat; the community of flat owners has no right to bring legal proceedings under Section 9a para. 2 WEG; Contamination of a plot of land with pollutants constitutes a deviation from its usual condition, at least where there is harmful soil alteration or a contaminated site within the meaning of the Federal Soil Protection Act in accordance with public law criteria; concealment of a known suspicion of a contaminated site constitutes fraud, including with regard to the actual contamination

Section 444 BGB – Exclusion of liability

Scope

LJudgment of 29 November 2006 – VIII ZR 92/06, BGHZ 170, 86: Requirements for the agreement on a quality, distinction between agreed and guaranteed quality, interpretation of a general exclusion of liability
LJudgment of 22 April 2016 – V ZR 23/15, ZfIR 2016, 785: Year of construction as a quality of a building; a quality that can be expected on the basis of public statements is also owed by operation of law in the purchase of land; a general exclusion of liability also covers this
Judgment of 27 September 2017 – VIII ZR 271/16, ZIP 2017, 2153: a general disclaimer of liability also covers the quality to be expected following a public statement; distinction between consumer and commercial transactions in consumer sales
Judgment of 25 January 2019 – V ZR 38/18, ZfIR 2019, 755: requirements for a (negative) agreement on quality; a general exclusion of liability also covers the quality to be expected following public statements

Fraud

LJudgment of 11 November 2022 – V ZR 213/21, ZfIR 2023, 90: Full rights in respect of defects concerning the common property also apply to the purchaser of a flat; the association of flat owners has no right to bring proceedings under Section 9a para. 2 WEG; Contamination of a plot of land with pollutants constitutes a deviation from the usual condition, at least where there is harmful soil alteration or a contaminated site within the meaning of the Federal Soil Protection Act in accordance with public law criteria; concealment of a known suspicion of a contaminated site constitutes fraud, including with regard to the actual contamination

Section 474, Section 14 BGB – consumer sale

Judgment of 27 September 2017 – VIII ZR 271/16, ZIP 2017, 2153: a general exclusion of liability also covers the condition to be expected following a public statement; distinction between consumer and business transactions in consumer sales

Section 9a para. 2 WEG – the right of the community of flat owners to bring legal proceedings

LJudgment of 11 November 2022 – V ZR 213/21, ZfIR 2023, 90: Full rights in respect of defects concerning the common property also apply to the purchaser of a flat; the owners’ association has no right to bring proceedings under Section 9a para. 2 WEG; Contamination of a plot of land with pollutants constitutes a deviation from its usual condition, at least where there is harmful soil alteration or a contaminated site within the meaning of the Federal Soil Protection Act in accordance with public law criteria; concealment of a known suspicion of a contaminated site constitutes fraudulent misrepresentation, including with regard to the actual contamination

III. Foreign judgements

No entries at present.

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Berlin, 22 July 2026