Rectifying Defects, Agreement on Rectification and Having the Defect Remedied
If the performance of a contract is defective, the buyer may demand a rectification of that defect at the seller’s expense. The party has the right to demand the rectification provided that it the rectification will not cause any unreasonable costs or unreasonable inconvenience to the seller.
Instead of rectification the seller has a right to perform a new delivery, if it will not cause any essential inconvenience to the buyer. Sometimes it is more reasonable to deliver new serviceable goods than to perform a difficult repairing. The buyer also has a right to demand new delivery instead of repairing, if the breach of contract is of substantial importance to him/her and the seller knew or ought to have known this.
The rescission of contact is possible only if the remedy of the defect is out of question or not effected within a reasonable time. Instead of rescission the buyer may also demand a reduction in price.
The seller has a right to remedy the defect if it performed at the seller’s expense and within a reasonable time without causing any essential inconvenience to the buyer.
The parties may also conclude an agreement on rectifying the defect. If the parties choose this option, it is important to agree in detail how the rectification is to be carried out. It should at least be agreed who will carry out the repairs, the timeline for repairs and how the repair costs will be dealt with. When the parties have approved the agreement on rectification, it is no longer possible to refer to the occurred defect. References to defects occurred as a result of the rectification may, however, be referred to.
If the seller’s performance is defective and the seller takes no action to rectify the defect, the buyer itself may have the goods repaired and demand reasonable compensation for the repair costs from the seller.
The buyer has to give a notice of his/her claim for rectification or new delivery in conjunction with his/her notice of defect or within a reasonable time thereafter. Otherwise the buyer loses his/her right to demand the rectification or the new delivery. If the seller has been gross negligent or has acted contrary to the rule of good faith and honor, the buyer has the right notwithstanding his/her failure to notify of his/her claim.
The provisions of rectification of defect apply only when the goods are defective. They are not applicable to delayed performances.