German Contract Law – Nearly a Decade After the Fundamental Reform in the Schuldrechtsmodernisierung

Abstract

German Contract Law is still under the impression of the large contract law reform of 1st January 2002, the Schuldrechtsmodernisierung, and the case law, in large part by the German Civil Law Supreme Court, the Bundesgerichtshof, continues to elaborate on the system. This article is an up-date to the one published in this review in 2007, p. 450, and discusses further clarification with respect to questions such as the one under which circumstances a first level remedy such as repair or replacement would seem to be ‘disproportionate’, which steps exactly have to be ‘free of charge’ in cases where goods purchased have been transported to another place or fixed to or integrated into other property, whether and in how far the investment services regime under the MiFID gives as well contractual rights to clients, for instance with respect to kick-back payments or other duties owed. The contribution further discusses such questions (outside the realm of directives) as the one whether the mechanism of a second chance should apply as well in cases where the defective good already causes damages in the business of the purchaser before the time limit set for second delivery has lapsed or whether the concept of pre-contractual fault (culpa in contrahendo) can apply besides the legal warranty regime installed by the directive. Thus, the German case law deserves attention as an answer to many questions raised by the acquis communautaire and beyond.