Withdrawal from the purchase contract.
May 18, 2011 | 35,00 EUR | answered by Jan Wilking
Dear Sir or Madam,
I am a premium bicycle dealer and I have the following issue: Customer XX purchased a road bike in matte white color for just under 5000 euros a year ago. The bicycle frame had a small paint damage from the manufacturer, which was immediately reported. The customer agreed to use the bike for the season and then have it exchanged or repainted. After the season, the frame was repainted by the manufacturer as promised. The small paint damage was repaired by repainting the entire frame. Additionally, at the customer's request, a special paint job was done on the frame, as he had trouble cleaning the matte surface. (The customer rides approximately 8000 km per year!) All work was carried out under the manufacturer's warranty. Upon delivery of the bicycle, the customer discovered 2-3 microscopic dust particles under the clear coat, as well as a minimal scratch of about 2 mm under the clear coat. The defects are so minor that even a macro camera cannot capture them. The manufacturer also rejected the complaint, as even brand-new paint jobs are not better. An independent expert also found no reason for complaint.
The customer now wants a full refund within 2 weeks. We have been contacted by his attorney. What should I do? I have never encountered such a situation before. I cannot send pictures as the dust particles and scratch are not visible.
Sincerely,
Dear inquirer,
I am happy to answer your inquiry taking into account the description of the facts and your input as follows:
If no right of withdrawal has been contractually agreed, a right of withdrawal could only arise from § 437 No. 2 BGB. This requires the existence of a defect. In addition, the buyer must have unsuccessfully requested the seller to remedy the defect within a deadline or the remedy must have failed or been refused.
However, a withdrawal from the purchase contract under § 437 BGB is likely to be excluded in your case. Even if one were to affirm a defective paint job and a failure of the remedy, a withdrawal would fail under § 323 para. 5 sentence 2 BGB. According to this provision, the buyer cannot withdraw from the contract in case of non-conforming performance if the breach is insignificant. The significance of the breach is to be determined based on objective criteria, in particular the objective extent of the quality deviation and the resulting impairment of use and depreciation. If the paint job only has minimal flaws, which can even occur in a factory-new paint job, there is at most a very minor defect that does not entitle to withdrawal.
Based on your description, I rather assume that there is no defect at all, which is confirmed by the statements of the manufacturer and the independent appraiser. Therefore, the buyer cannot assert any other rights arising from a defect (such as reduction). Therefore, you should reject the buyer's claim and refer to your appraiser-confirmed defect-free remedy. You have done everything necessary for the proper fulfillment of the purchase contract with this.
I hope that I have provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that I cannot provide a conclusive advice here as part of an initial consultation without knowledge of all circumstances. If you wish for a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Yours sincerely
