Wertersatz nach Widerruf. Die problematische Umsetzung der Verbraucherrechte.
The author analyses the practical issues arising from the implementation of the Consumer Rights Directive into the German Civil Code (”BGB“), in particular from the changes that have been made to article 357 paragraph 7 BGB, which transposes article 14 paragraph 2 of the Directive 2011/83/EU on the consumer’s obligation for compensation for (mis)use in case of withdrawal. Identifying several issues that article 357 paragraph 7 BGB does not satisfactorily address the author’s verdict is that article 357 paragraph 7 BGB is incomplete, that in particular, the deletion of the link to the provisions regarding the rescission (“Rücktritt”) of the contract leads to problematic and probably unintended gaps that in part could (and should) be closed by an analogous application of the existing rescission provisions. The issues raised by the author are inter alia: Does the information regarding the right of withdrawal have to include the information regarding the obligation of compensation for diminished value? When does the information have to be given to the consumer and what if the trader provides the information after the conclusion of the contract? What are the consequences of an incomplete notice of the right of withdrawal – is the consumer not even liable for intentional damage to the good as the wording of article 357 paragraph 7 BGB would suggest? What exactly does it mean that the diminishing value must result from “the handling of the goods”? What about “accidental damage” to the good? What about the sale, burdening, reshaping and consumption of the good, which the wording of article 357 paragraph 7 BGB does not cover? The author furthermore analyses issues arising if the right of withdrawal coincides with legal guarantees for a defective good.