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By concluding a purchase contract, the seller undertakes to hand over the purchased object to the buyer and to provide him with ownership of it, and likewise, the buyer undertakes to pay the seller the agreed purchase price (Art. 184 para. 1 CO). If the object of purchase has defects, the buyer is entitled to various warranty claims under given circumstances. A central aspect, especially in the case of rescission, is the distinction between indirect and direct damage (distinction between Art. 208 para. 2 CO and Art. 208 para. 3 CO). These issues demand further discussion in more detail.
For material warranty to apply, the material defect of the object of purchase must have already existed at the time of the transfer of risk (Art. 185 CO). Commercial lawyers in Zurich, St. Gallen or Frauenfeld can show you when the risk becomes relevant in each contractual constellations. A material defect is a defect that cancels out or significantly reduces the value or suitability of the purchased item. If assurances were given by the seller and these are violated, this is also considered a material defect. A further prerequisite for the warranty of material quality, the buyer must not have been aware of the defect at the time of the conclusion of the contract (Art. 200 para. 1 CO). The buyer must inspect the purchase as soon as it is feasible in the ordinary course of business and, upon the discovery of the defects, immediately notify the seller of them (Art. 201 para. 1 CO). The attorneys at law for commercial law in St. Gallen, Frauenfeld and Zurich can assist you with any notice of defects. If the buyer misses these deadlines, the item including defects is considered approved. In principle, the claim for material warranty expires two years after delivery of the item to the buyer (Art. 210 para. 1 CO). It is irrelevant whether the buyer discovered the defects before or after the expiry of the period.
If the requirements are met, the seller has the following options: rescission or reduction (Art. 205 CO), replacement (Art. 206 CO) or, if necessary, rectification (Art. 368 OR analogously). A commercial lawyer in Switzerland can advise you on the possible claims on material warranty and discuss with you which is the most advantageous in an individual case. If the buyer chooses rescission, its implementation is explicitly stipulated in Art. 208 CO. The buyer must return the item including the benefit received. In return, the seller must refund the sales price including interest. The seller is also obligated to compensate for any damage resulting from the defect. As aforementioned, the distinction between directly caused and indirectly caused damage becomes relevant here. The directly caused damage (according to Art. 208 para. 2 CO) must be handled by the seller, regardless of fault. It is irrelevant whether the seller is at fault for the damage caused to the buyer or not. In the case of indirectly caused damage (Art. 208 para. 3 CO), the seller must only pay for the damage if he is at fault. The distinction between direct and indirect damage can be extremely difficult in concrete cases. A lawyer for commercial law in Frauenfeld, Zurich or St. Gallen can help you with this.
According to the Federal Supreme Court, the distinction between direct and indirect damage is to be made on the basis of the length of the causal chain. The damage is classified as indirect if further causes of damage occurred. If the damage results from the usual or agreed purpose of the contract, this does not constitute as a further cause of damage and the damage is therefore classified as ‘direct’.
An example of the great relevance but also difficulty of the distinction between indirect and direct damage is the case of the Müller Amazon parrots (BGE 133 III 257). In this case, the Federal Supreme Court commented in detail on this very relevant distinction.