I.
Warranty exclusions are widespread in contract law. As a rule, buyers or clients are also prepared to accept such limitations of the contractual partner’s liability – to varying degrees, of course.

But what applies if the parties have agreed certain properties of the subject matter of the contract on the one hand and have comprehensively excluded the warranty on the other?

The following analysis of this extremely practice-relevant topic is based on the example of sales law:

II.
§ Section 434 (1) sentence 1 of the German Civil Code (BGB):

“The item is free from material defects if it has the agreed quality at the time of transfer of risk.”

If – as is often the case – the negotiated purchase contract states: “The purchase is subject to the exclusion of any warranty” (frequent example: purchase contracts for used cars), the question arises as to whether such exclusions also cover conditions that the parties had agreed upon.

The law does not provide an answer to this question.

If and insofar as the parties have expressly agreed a certain quality in the text of the contract, the answer in case law is clear. In such cases, the Federal Court of Justice (BGH) has consistently held that the warranty committee cannot include an agreed quality if the interpretation is in line with the interests of the parties. The BGH explains this (see only BGH, 29.11.2006 – VIII ZR 92/06):

“If, in a purchase contract, a certain quality of the purchased item and a blanket exclusion of liability for material defects are agreed at the same time, this must generally be interpreted to mean that the exclusion of liability does not apply to the lack of the agreed quality ( Section 434 para. 1 sentence 1 BGB), but only for such defects which consist in the fact that the item is not suitable for the use assumed under the contract ( § 434 para. 1 sentence 2 no. 1 BGB) or is not suitable for normal use and does not have a quality which is usual for items of the same type and which the buyer can expect according to the type of item ( § 434 para. 1 sentence 2 no. 2 BGB).”

III.
But what applies if there is no such express agreement, but the buyer is rightly of the opinion that he has agreed with the seller on a certain property?

The legislator has already indicated that an “implied agreement of the parties” is sufficient for a quality agreement. The BT-Drucksache14/ 6040 (p. 213) states:

“(…) The draft does not want to decide whether this is a contractual agreement or whether it is a matter of the parties’ ideas in the run-up to the contract. In any case, the wording makes it clear that an implied agreement between the parties is sufficient. This also serves to implement Article 2 (2) (b) of the Consumer Sales Directive. According to this, conformity with the contract is presumed if the consumer goods are suitable for a specific purpose intended by the consumer, which the consumer made known to the buyer when the contract was concluded and which the seller agreed to. In these cases, an “agreed quality” of the purchased item within the meaning of Section 434 (1) sentence 1 RE will often be assumed. For any remaining case constellations in which a contractually agreed quality cannot be assumed, but the parties have nevertheless assumed a certain use of the purchased item at the time of conclusion of the contract, § 434 para. 1 sentence 2 no. 1 RE can be used. (…). “

In principle, there is also agreement in case law that nothing else can apply in the case of a combination of implied or conclusively agreed quality and exclusion of warranty than in the case of a combination of a quality expressly included in the contractual document and an exclusion of warranty.

This is to be fully agreed with: If the parties were in agreement under the circumstances with regard to a certain quality (characteristic), the seller may not be able to renounce this by means of a blanket exclusion of warranty

However, the following problem remains, which is crucial in practice:

What are the requirements for a quality agreement claimed by the buyer?

In its judgment of May 20, 2009 (case no. VIII ZR 191/07, NJW 2009, 2807), the BGH made the following revealing statements:

“It is true that the agreement of intent required for a quality agreement can also be achieved implicitly in such a way that the buyer informs the seller of certain requirements for the object of purchase and the seller agrees (BT-Dr 14/6040, p. 213). However, a unilateral idea on the part of the buyer is not sufficient for this even if it is known to the seller.(…)”

The following rule of thumb can therefore be used:

An implied agreement in the sense that a buyer’s expectation has been expressed and the seller responds in the affirmative is sufficient for a quality agreement.

Furthermore, it follows that – unlike in the case of a warranty under the old law – a special intention on the part of the seller is not required (see also Westermann in MüKo-BGB, Section 434, marginal no. 16, 7th edition 2016).

This was expressly stated by the Higher Regional Court of Cologne in its judgment of February 20, 2013 – 13 U 162/09 (NJW-RR 2013, 1209):

“(…) It is not necessary for the seller to have a special will to comply, as was required for the warranty pursuant to Section 463 BGB old version; on the other hand, a unilateral description on the part of the seller is not sufficient. For the assumption of a quality agreement, it is sufficient if the buyer formulates his expectations of the purchased item and the seller responds in the affirmative. This can also happen implicitly and will be the case in particular if the seller is a specialist who accepts the buyer’s expressed expectations of certain properties and circumstances without contradiction (BGH, NJW 2009, 2807; OLG Karlsruhe, NJW-RR 2008, 1735; Westermann, in: MünchKomm-BGB, § 434 Rdnr. 16).”

And also the Higher Regional Court of Düsseldorf in its ruling of March 10, 2015 – I-21 U 93/14 (NJW-RR 2015, 1103):
A quality agreement can be made not only expressly, but also tacitly. It is not necessary for the seller to declare a special intention to comply. Rather, it is sufficient if the buyer formulates certain expectations of the object of purchase during the contract negotiations and the seller agrees to this (see BGH, NJW 2013, NJW Jahr 2013 page 1074 [NJW Jahr 2013 1075] = MMR 2013, MMR Jahr 2013 page 294 marginal no. MMR year 2013 page 294 margin no. 16; Staudinger/Matusche-Beckmann, § 434 margin no. STAUDINGER BGB § 434 margin no. 64; MüKoBGB/Westermann, § 434 margin no. MUEKOBGB margin no. 16). In contrast to this, however, a quality agreement cannot be assumed if the buyer merely has unilateral ideas (see BGH, NJW 2013, NJW year 2013 page 1074 = MMR 2013, MMR year 2013 page 294).