You Might Be Thinking…

“If the machine isn’t working properly, it must be a defect.”
Not quite. Law and court practice distinguish between hidden defects, for which the seller is liable, and wear and tear from regular use, which cannot be claimed.

Clients Often Ask Me…

• What counts as “normal wear and tear”?

• Can I claim rapid wear if the machine is of poor quality?

• What is the difference between a defect and poor maintenance?

• Will regular servicing help in a warranty dispute?

• How should this be addressed in the purchase contract?

Legal Framework in Brief

• § 2099 Civil Code: Goods are defective if they lack agreed or usual properties.

• § 2100 Civil Code: Liability for defects applies to the state at the moment of risk transfer.

• § 2167 Civil Code (consumer): Wear caused by normal use is not a defect.

• In B2B contracts, liability can be contractually adjusted (scope, deadlines, servicing).

How to Proceed in Practice

1. Define in the Purchase Contract

• Specify what counts as normal wear (e.g., consumable parts).

• Agree that premature wear is considered a defect.

2. Regular Servicing

• The buyer should follow the service plan, otherwise risks losing warranty rights.

• Service reports serve as evidence in disputes.

3. Documentation at Handover

• The handover protocol should record the condition of the machine and any notes.

• Helps distinguish original defects from later wear.

4. Expert Reports

• In disputes, technical reports usually decide whether it’s a defect or natural wear.

Risks and Common Mistakes

• Unclear contract → each party interprets liability differently.

• Missing service records → buyer cannot prove proper maintenance.

• Consumables overlooked → wear of brakes, chains, or bearings usually not claimable.

• Mixing defects with misuse → if the buyer overloaded the machine, the claim fails.

Lawyer’s Checklist

✔ Define in the contract what counts as wear.
✔ Require the seller to provide a service manual.
✔ Agree that premature wear counts as a defect.
✔ Keep all service and inspection records.

FAQ

Can I claim rapid wear if the machine is poor quality?
Yes, if the lifespan is clearly shorter than usual.

What if the seller says it’s wear and I say it’s a defect?
An expert opinion and the contract wording will be decisive.

Can a guarantee cover consumables?
Yes, but it must be explicitly agreed.

Do I need a service record?
Yes, otherwise you may lose defect claims.