Service: Sales law. New legal regulations for the boat trade

BOATS: Mr Kunze, a new law of obligations has been in force since January. What does this mean in concrete terms for buyers of new and used boats?

Jochen-P. Kunze:The reform is a real upheaval. Not much will change in the private boat trade. However, buying a yacht from a dealer will become much more consumer-friendly. The possibilities of obtaining legal protection in the event of material defects will improve massively. This applies to both new and used boats. Even when trading in digital devices, companies will have fewer and fewer opportunities to wriggle out of the warranty.

BOATS:Where are the reforms most likely to have an impact?

Kunze: The new rules leave serious used boat dealers with little option but to carry out a comprehensive check of the boats on offer and draw up a condition report; otherwise they will quickly fall into a liability trap. Dealers must provide better information, especially where the condition of the boat on offer deviates or could deviate from the usual expectations. In my view, the quality of used boats on offer will therefore be much easier to assess in future.

BOATS: And if defects do occur?

Kunze: If these occur in new or used boats in the first twelve months, the dealer must prove that he is not responsible. Dealers will therefore have to provide warranties much more frequently. Warranties must also be more clearly defined. In my opinion, this will change an unacceptable situation in which customers have often been left completely unaware of their rights.

New legal situation

The German legislator has fundamentally reorganised sales law. This implements EU-wide rules at national level. The commercial water sports trade is one of the areas affected. Although it remains to be seen how the courts will apply the reform in practice, fundamental changes are already foreseeable.

BOATS: What will change with regard to the dealer's liability for material defects on the boat?

Kunze:In many cases, it will be easier for customers to enforce their claims. If retailers try to circumvent the new rules, this will often lead to their contractual clauses flying off the shelves. It is likely that all contractual arrangements and general terms and conditions that retailers have used up to 2021 will lose their effect. In future, the process of rectifying a defect must be much quicker. In addition, the legislator has doubled the period within which it is assumed that a defect already existed at the time of delivery from six to twelve months. If a defect only becomes apparent shortly before the warranty period expires, the pressure to act quickly is reduced: This is because the statutory periods may then be extended by up to another four months. So there is plenty of time to assert your own claims.

BOATS: There are also important innovations for digital devices on board. What are they?

Kunze: When it comes to updating plotters, for example, the dealer assumes the full risk of acting as a service centre for the electronics manufacturers. In practice, this will hardly have any effect on new boats. However, this also applies to used boats! This can become a liability risk for dealers.

BOATS: What about wear and tear?

Kunze: Up to now, wear and tear has been dismissed relatively sweepingly as a normal risk for buyers. The question of the burden of proof has not been treated as uniformly by the courts as would be desirable. It is true that age-related wear and tear must still be accepted by the buyer. However, the Federal Court of Justice has recently drawn a clear line in the case of rust penetration and fundamental defects. In cases of doubt, the buyer must prove that defects are not due to normal wear and tear. However, they now also have twelve months to do so instead of the previous six months.

BOATS: Is the case law on the car trade transferable to boats, for example when it comes to compensation for damages due to false information?

Kunze: In principle, the law does not differentiate between the purchase of a boat or a car. Many principles and rules are transferable 1:1. In the area of yacht trading, however, there is little case law on the numerous technical particularities. After this reform, we will therefore have to watch for many years to see how the courts deal with ambiguities.

BOATS: That doesn't sound good for the dealers. What do they have to do now?

Kunze: We will see that there will be many retailers who will have serious problems without adaptation. Existences will be lost. Reputable dealers will adapt. However, commercially traded boats will probably end up being more expensive due to the additional work involved.

BOATS: What does this customisation look like?

Kunze: Many dealers will concentrate on the market for young used boats and switch to the brokerage business for older used boats. In the new boat trade, shipyards and dealer associations will inevitably have to provide more information, document more and regulate more than before. There will still be trouble.

BOATS: What loopholes will retailers still have in the future?

Kunze: The legislator has done a good job - there are no really big loopholes. If we look at the reality to date, many retailers will not be able to wriggle out of liability to any great extent. After all, the industry is largely shirt-sleeved.

Need more information? The service report on the new sales law can be found in BOOTE issue 05/2022 - at newsstands since 20 April 2022 or online in the Delius Klasing shop Delius Klasing Shop.