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=U4= Sec433 -- Section 433 Typical contractual duties in a purchase agreement
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=S=> BGB 433. 1 By a purchase agreement , the seller of a thing is obliged to deliver the thing to the buyer and to procure ownership of the thing for the buyer . The seller must procure the thing for the buyer free from material and legal defects .
=S=> BGB 433. 2 The buyer is obliged to pay the seller the agreed purchase price and to accept delivery of the thing purchased .
=U4= Sec434 -- Section 434 Material defects
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=S=> BGB 434. 1 The thing is free from material defects if , upon the passing of the risk , the thing has the agreed quality . To the extent that the quality has not been agreed , the thing is free of material defects if it is suitable for the use intended under the contract , if it is suitable for the customary use and its quality is usual in things of the same kind and the buyer may expect this quality in view of the type of the thing . Quality under sentence 2 no . 2 above includes characteristics which the buyer can expect from the public statements on specific characteristics of the thing that are made by the seller , the producer ( section 4 ( 1 ) and ( 2 ) of the Product Liability Act [ Produkthaftungsgesetz ] ) or his assistant , including without limitation in advertising or in identification , unless the seller was not aware of the statement and also had no duty to be aware of it , or at the time when the contract was entered into it had been corrected in a manner of equal value , or it did not influence the decision to purchase the thing .
=S=> BGB 434. 2 It is also a material defect if the agreed assembly by the seller or persons whom he used to perform his obligation has been carried out improperly . In addition , there is a material defect in a thing intended for assembly if the assembly instructions are defective , unless the thing has been assembled without any error .
=S=> BGB 434. 3 Supply by the seller of a different thing or of a lesser amount of the thing is equivalent to a material defect .
=U4= Sec435 -- Section 435 Legal defects
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=S=> BGB 435 The thing is free of legal defects if third parties , in relation to the thing , can assert either no rights , or only the rights taken over in the purchase agreement , against the buyer . It is equivalent to a legal defect if a right that does not exist is registered in the Land Register .
=U4= Sec436 -- Section 436 Public charges on plots of land
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=S=> BGB 436. 1 Unless otherwise agreed , the seller of a plot of land is obliged to bear public services development charges and other municipal development charges for measures the construction of which began before the contract was entered into , irrespective of the point of time when they became payable .
=S=> BGB 436. 2 The seller of a plot of land is not liable for the land being free from other public levies and other public charges that are not suitable to be entered in the Land Register .
=U4= Sec437 -- Section 437 Rights of buyer in the case of defects
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=S=> BGB 437 If the thing is defective , the buyer may , provided the requirements of the following provisions are met and unless otherwise specified , under section 439 , demand cure , withdraw from the agreement under sections 440 , 323 and 326 ( 5 ) or reduce the purchase price under section 441 , and under sections 440 , 280 , 281 , 283 and 311a , demand damages , or under section 284 , demand reimbursement of futile expenditure .
=U4= Sec438 -- Section 438 Limitation of claims for defects
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=S=> BGB 438. 1 The claims cited in section 437 nos . 1 and 3 become statute-barred in thirty years , if the defect consists a)a real right of a third party on the basis of which return of the purchased thing may be demanded , or b)some other right registered in the Land Register , in five years a)in relation to a building , and b)in relation to a thing that has been used for a building in accordance with the normal way it is used and has resulted in the defectiveness of the building , and otherwise in two years .
=S=> BGB 438. 2 In the case of a plot of land the limitation period commences upon the delivery of possession , in other cases upon delivery of the thing .
=S=> BGB 438. 3 Notwithstanding subsection ( 1 ) nos . 2 and 3 and subsection ( 2 ) , claims become statute-barred in the standard limitation period if the seller fraudulently concealed the defect . In the case of subsection ( 1 ) no . 2 , however , claims are not statute-barred before the end of the period there specified .
=S=> BGB 438. 4 The right of withdrawal referred to in section 437 is subject to section 218. Notwithstanding the fact that a withdrawal is ineffective under section 218 ( 1 ) , the buyer may refuse to pay the purchase price to the extent he would be so entitled on the basis of withdrawal . If he makes use of this right , the seller may withdraw from the agreement .
=S=> BGB 438. 5 Section 218 and subsection ( 4 ) sentence 2 above apply with the necessary modifications to the right to reduce the price set out in section 437.
=U4= Sec439 -- Section 439 Cure
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=S=> BGB 439. 1 As cure the buyer may , at his choice , demand that the defect is remedied or a thing free of defects is supplied .
=S=> BGB 439. 2 The seller must bear all expenses required for the purpose of cure , in particular transport , workmen's travel , work and materials costs .
=S=> BGB 439. 3 Without prejudice to section 275 ( 2 ) and ( 3 ) , the seller may refuse to provide the kind of cure chosen by the buyer , if this cure is possible only at disproportionate expense . In this connection , account must be taken in particular , without limitation , of the value of the thing when free of defects , the importance of the defect and the question as to whether recourse could be had to the alternative kind of cure without substantial detriment to the buyer . The claim of the buyer is restricted in this case to the alternative kind of cure ; the right of the seller to refuse the alternative kind of cure too , subject to the requirements of sentence 1 above , is unaffected .
=S=> BGB 439. 4 If the seller supplies a thing free of defects for the purpose of cure , he may demand the return of the defective thing in accordance with sections 346 to 348.
=U4= Sec440 -- Section 440 Special provisions on withdrawal and damages
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=S=> BGB 440 Except in the cases set out in section 281 ( 2 ) and section 323 ( 2 ) , it is also not necessary to specify a period of time if the seller has refused to carry out both kinds of cure under section 439 ( 3 ) or if the kind of cure that the buyer is entitled to receive has failed or cannot reasonably be expected of him . A repair is deemed to have failed after the second unsuccessful attempt , unless in particular the nature of the thing or of the defect or the other circumstances leads to a different conclusion .
=U4= Sec441 -- Section 441 Reduction of price
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=S=> BGB 441. 1 Instead of withdrawing from the agreement , the buyer may , by declaration to the seller , reduce the purchase price . The ground for exclusion under section 323 ( 5 ) sentence 2 does not apply .
=S=> BGB 441. 2 If more than one person comprises either the buyer or the seller , price reduction may be declared only by all or to all of them .
=S=> BGB 441. 3 In the case of a price reduction , the purchase price is to be reduced in the proportion in which the value of the thing free of defects would , at the time when the contract was entered into , have had to the actual value . To the extent necessary , the price reduction is to be established by appraisal .
=S=> BGB 441. 4 If the buyer has paid more than the reduced purchase price , the excess amount is to be reimbursed by the seller . Section 346 ( 1 ) and section 347 ( 1 ) apply with the necessary modifications .
=U4= Sec442 -- Section 442 Knowledge of the buyer
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=S=> BGB 442. 1 The rights of the buyer due to a defect are excluded if he has knowledge of the defect at the time when the contract is entered into . If the buyer has no knowledge of a defect due to gross negligence , the buyer may assert rights in relation to this defect only if the seller fraudulently concealed the defect or gave a guarantee of the quality of the thing .
=S=> BGB 442. 2 A right registered in the Land Register must be removed by the seller even if the buyer is aware of it .
=U4= Sec443 -- Section 443 Guarantee of quality and durability
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=S=> BGB 443. 1 If the seller or a third party gives a guarantee for the quality of the thing or that the thing will have a specified quality for a specified period ( guarantee of durability ) , then , if there is a claim under the guarantee , the buyer , notwithstanding his statutory claims , has the rights given by the guarantee upon the terms set out in the declaration of guarantee and in the relevant advertising in relation to the person who granted the guarantee .
=S=> BGB 443. 2 To the extent that a guarantee of durability has been given , there is a presumption that a material defect which appears during the guarantee period triggers the rights under the guarantee .
=U4= Sec444 -- Section 444 Exclusion of liability
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=S=> BGB 444 The seller may not invoke an agreement that excludes or restricts the rights of the buyer with regard to a defect insofar as the seller fraudulently concealed the defect or gave a guarantee of the quality of the thing .
=U4= Sec445 -- Section 445 Limitation of liability in the case of public auctions
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=S=> BGB 445 If a thing is sold in exercise of a security right at a public auction in which it is described as a pledge , the buyer only has rights in respect of a defect if the seller fraudulently concealed the defect or gave a guarantee of the quality of the thing .
=U4= Sec446 -- Section 446 Passing of risk and of charges
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=S=> BGB 446 The risk of accidental destruction and accidental deterioration passes to the buyer upon delivery of the thing sold . From the time of delivery the emoluments of the thing accrue to the buyer and he bears the charges on it . If the buyer is in default of acceptance of delivery , this is equivalent to delivery .
=U4= Sec447 -- Section 447 Passing of risk in the case of sales shipment
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=S=> BGB 447. 1 If the seller , at the request of the buyer , ships the thing sold to another place than the place of performance , the risk passes to the buyer as soon as the seller has handed the thing over to the forwarder , carrier or other person or body specified to carry out the shipment .
=S=> BGB 447. 2 If the buyer has given a particular instruction on the method of shipping the thing and the seller , without a strong reason , does not adhere to this instruction , the seller is liable to the buyer for the damage arising from this .
=U4= Sec448 -- Section 448 Costs of delivery and comparable costs
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=S=> BGB 448. 1 The seller bears the costs of delivery of the thing , the buyer the costs of acceptance and of shipping the thing to a place other than the place of performance .
=S=> BGB 448. 2 The buyer of a plot of land bears the costs of the notarial recording of the purchase agreement and of the declaration of conveyance , the registration in the Land Register and the declarations necessary for registration .
=U4= Sec449 -- Section 449 Retention of title
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=S=> BGB 449. 3 An agreement on retention of title is void to the extent that the passing of ownership is made subject to the satisfaction by the buyer of third-party claims , including , without limitation , those of an enterprise associated with the seller .
=U4= Sec450 -- Section 450 Excluded buyers in the case of certain sales
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=S=> BGB 450. 1 When an object is sold by way of execution of judgment , the person instructed to carry out or manage the sale and the assistants used by him , including the recording clerk , may not purchase the object to be sold either for themselves in person or through another person or as the agents of another person .
=S=> BGB 450. 2 Subsection ( 1 ) above also applies to a sale other than by execution of judgment , if the order to sell the object has been given under a statutory provision authorising the principal to have the object sold for the account of another person , including , without limitation , sale of a pledge , sale authorised by sections 383 and 385 , and sale from an insolvency estate .
=U4= Sec451 -- Section 451 Purchase by excluded buyer
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=S=> BGB 451. 1 The effectiveness of a purchase made in violation of section 450 and of the transfer of the object purchased is subject to the approval of the person taking part in the sale as obligor , owner or obligee . If the buyer requests a person taking part to make a declaration of ratification , section 177 ( 2 ) applies with the necessary modifications .
=S=> BGB 451. 2 If , as a result of refusal of ratification , a new sale is undertaken , the earlier buyer is liable for the costs of the new sale and for an amount by which the proceeds of sale are reduced .
=U4= Sec452 -- Section 452 Purchase of a ship
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=S=> BGB 452 The provisions in this subtitle on the sale of plots of land apply with the necessary modifications to the sale of registered ships and ships under construction .
=U4= Sec453 -- Section 453 Purchase of rights
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=S=> BGB 453. 1 The provisions on the purchase of things apply with the necessary modifications to the purchase of rights and other objects .
=S=> BGB 453. 2 The seller bears the costs of creation and transfer of the right .
=S=> BGB 453. 3 If a right comprising the right to possession of a thing is sold , the seller is obliged to deliver the thing to the buyer free of material and legal defects .
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