Lake Constance sailor Auwald sold his yacht to the Baltic Sea for reasons of age and agreed an effective exclusion of warranty in the contract. About two months later, the buyer contacted him and asserted claims because the engine was unsuitable for the new sailing area. It was too weak, and the propeller was already surfacing in light swell.
It had been agreed in the purchase contract that the sailing yacht would be handed over "ready for sea". However, it was not with this drive. The agreed exclusion of warranty could therefore not apply, as "seaworthy" was a quality agreement that conflicted with the exclusion of warranty. The buyer therefore had a claim to the delivery of a suitable motor or the assumption of the costs for such a purchase. Seller Auwald had not noticed the defects described on Lake Constance. He rejects the claim in its entirety.
The lawyer comments
In fact, even an exclusion of warranty that is effective in terms of its wording is in tension with quality agreements that both parties have made intentionally and seriously.
Most sellers today are aware that clauses such as "the sale is subject to exclusion of warranty" or "sold as is" in so-called form contracts, which can be found on the Internet, for example, are not sufficient and are legally ineffective.
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It is therefore necessary to expressly add that possible claims for injury to life, limb, health and gross negligence should not be excluded. Seller Auwald has complied with these requirements and thus used a warranty exclusion permissible in a private sale as a basis. However, the further agreement of a "seaworthy" handover of the boat can be problematic despite the effective warranty exclusion. This is because an exclusion of warranty does not relate to defects that conflict with a specific contractual agreement on quality. If the engine is not suitable for the intended use, there may well be doubts as to whether the yacht is "seaworthy".
According to the established case law of the Federal Court of Justice (BGH, judgement of 20 March 2019, VIII ZR 213/18), a quality agreement within the meaning of Section 434 (1) sentence 1 BGB presupposes that the seller indicates his willingness to assume responsibility for all consequences of the lack of this quality. This is subject to strict requirements.
Seller Auwald did not know that the engine would cause problems in swell. By "ready for sea" he meant that the sailing yacht was to be handed over with equipment that, in his experience, was in working order. As a Lake Constance sailor, he did not have to worry about the requirements after a change of sailing area. The assumption of an unconditional intention to assume responsibility for the consequences of the lack of the "seaworthy" property on the Baltic Sea would therefore over-interpret the content of the contract. Nevertheless, the engine may be unsuitable for the future intended use and therefore a defect. But one that is covered by the effective exclusion of warranty.
Descriptions in exposés of used boats such as "ready for use", "technically flawless" or "ready to sail" are often in conflict with an exclusion of warranty. This is because a court may well interpret this as a binding quality agreement. The legal consequence could be claims by the buyer.
It should also be noted that such a quality agreement cannot necessarily only be derived from the contract document. Rather, it is sufficient if it is clear from the exposé or other documents that both parties have accepted a certain characteristic of the boat as binding. Broad terms in particular, which can be placed in exposés and sales talks to promote sales, should therefore be avoided as far as possible in order not to jeopardise the effectiveness of the exclusion of warranty for unknown defects. Otherwise, such "flowery" descriptions of the condition of the used boat are often the subject of later legal disputes. However, these can easily be avoided by taking appropriate care with the chosen wording.
