material defect

material defect

The term material defect does not under all circumstances refer to errors or the lack of promised properties. Rather, it is about the subjective nature. First and foremost, it depends on the agreement between two contracting parties. In this context, one often speaks of the so-called subjective error concept. The legislator differentiates between a total of seven different types of material defects. These are defined in different ways – some negative, others positive. For reasons of space, only the three most important types are discussed in more detail here.

In general, the following types exist:

  • Agreed quality according to § 434 paragraph 1 sentence 1 BGB
  • Suitability for the contractually required use according to Section 434 Paragraph 1 Sentence 2 No. 1 BGB
  • Suitability for normal use according to Section 434 Paragraph 1 Sentence 2 No. 2 BGB
  • Improper assembly according to § 434 paragraph 2 sentence 1 BGB
  • Insufficient assembly instructions according to § 434 paragraph 2 sentence 2 BGB
  • Delivery of another thing according to § 434 Abs. 3 Alt. 1 BGB and
  • Delivery of a small quantity according to § 434 paragraph 3 alternative 2 BGB

There is a strict hierarchy in the first three species. The level below is only used if the next higher level cannot be used. With reference to the hierarchical levels, the following exist, sorted according to their order of precedence.

Specially agreed quality or subjective standard

According to Section 434, Paragraph 1, Sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch), special agreements must be observed with regard to the nature of the purchased items. The contractual partners have stipulated this in the purchase contract in terms of determining the quality of the target item sold. If a property does not correspond to the property specified in the contract, this is a material defect.


The quality is of great importance in connection with the material defect. This is every single agreed property. The concept of quality is to be equated with the actual condition of the goods. All objectively possible properties are therefore able to determine the condition. This can be, for example, height, age, weight or horsepower. This regulation can only be applied if there is a special agreement regarding the quality.


The quality is deemed to have been agreed if this was determined by both contracting parties by means of declarations of intent when the contract was concluded. It is sufficient if the buyer provides a description of the characteristics expected from him and the seller gives his consent. If the buyer’s statements are left unopposed, this will be taken as approval. But even if the seller describes the properties of the product, these deviate from the usual properties and the customer signs the purchase contract, there is a contractual agreement on the quality.

Suitability for the contractually assumed use or subjective standard

If there is no special agreement in relation to the nature of the goods, everything depends on the suitability for use that the contract assumes. This means that if the agreements state that the goods are to be used in a certain way, then it is imperative that they are suitable for this use and have the properties required for this.

Suitability for normal use or objective standard

If there are no express agreements as to the quality and no contractual definition in relation to the intended use and intended quality of the goods, they must prove their suitability for their usual use. However, subjective aspects can also be important. It is therefore also important to note whether the buyer and seller act as consumers or entrepreneurs. It doesn’t matter whether it’s a used or new product.

In addition to the three types of material defects mentioned and described, there are four more types: improper assembly, inadequate assembly instructions, delivery of a different item and shortage.

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