Damaged shipments, obviously used equipment in the box, or items that don’t match what was ordered? Situations like this happen all the time in online trading. Some dealers react to the subsequent complaint with stalling tactics, try to intimidate customers with legal-sounding demands or shift responsibility by alleging transport damage.
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Consumers should not let this deter them and consistently demand their rights. Legally, goods that are damaged or do not conform to the contract are a material defect. “Any negative deviation of the actual quality from the agreed quality constitutes a defect,” explains lawyer Niklas Mühleis in the c’t consumer protection podcast. This applies regardless of whether the damage occurred during transport or an already damaged device was sent.
According to Section 437 of the German Civil Code (BGB), consumers are then entitled to supplementary performance. You can request that the defect be eliminated or that an item free of defects be delivered. The seller must also bear any costs that arise during subsequent fulfillment, such as transport costs for return shipping. The customer’s sole contact is his contractual partner, i.e. the dealer from whom the goods were ordered.
Entitlement to new goods: What is considered used
In order to enforce the right to supplementary performance as efficiently as possible, those affected should record the condition of the goods and packaging with photos from different perspectives immediately after unpacking. If you are not alone when unpacking, you will also have a witness on hand in the event of a dispute. Buyers should then contact the dealer in writing, describe the defects precisely and attach the photos taken.
A product sold as “new” may have been unpacked and inspected beforehand, but it must not show any signs of use. These include, for example, scratches, wear and tear, dirt, limescale stains on water devices or a verifiable operating time, provided this can be read. Protective films that have already been removed can also be an indication of previous use.
Anyone who has ordered a new device is also entitled to a new device as a replacement – not to a refurbished or used copy. The dealer may only deliver this if the customer expressly agrees to this.
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Price changes remain an entrepreneurial risk
A dealer may only refuse to deliver a replacement in a few exceptional cases, for example if subsequent performance is actually impossible because it is a unique item. Even if subsequent delivery is only possible with disproportionate effort, the dealer may deviate from this and offer alternative solutions. However, these exceptions do not apply to mass-produced products that are regularly available in stores.
Price increases after discount campaigns such as Black Friday fall under the normal entrepreneurial risk and the fact that a product has now become slightly more expensive is not enough for normally available series items. In this case, the cost risk is borne by the retailer, not the consumer.
Set a deadline and build pressure
If the retailer remains inactive or refuses to deliver a replacement without a valid reason, those affected should set a reasonable deadline in writing and clearly state what they expect. If you want, you can set a short grace period after the deadline has expired without results and announce further steps. The letter does not have to be long: describe the defect briefly, state the desired subsequent performance (elimination of the defect or delivery of new, defect-free goods) and set a specific date.
If this has no effect, an official letter from a lawyer can help and, in the case of high-priced devices, a lawsuit may be an option. If you do not want to continue the dispute, you can make use of your right of withdrawal after subsequent performance has been refused or failed: the contract will be reversed, the full purchase price will be refunded and the goods will be returned.
In the current episode of the c’t consumer protection podcast, be careful, customer! We will discuss how those affected can effectively defend themselves against inadmissible excuses and assert their rights.
You can read the c’t article on the dispute discussed in the podcast here:
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