The German legislator has fundamentally reorganized sales law. This means that EU-wide rules are implemented at national level. Among other things, the commercial water sports trade is affected. Although it is still unclear how the case law will apply the reform in practice, fundamental changes are already foreseeable.
The Flensburg lawyer
Jochen P. Kunze
specializes in yacht commercial law.
YACHT: Mr. Kunze, what does the change in the law mean for buyers of new and used boats?
Jochen P. Kunze: Not much will change in the private boat trade. But buying a yacht from a dealer is becoming a lot more consumer friendly. The possibilities of obtaining legal protection in the event of material defects will improve massively. This applies to both new and used boats. Even when trading in digital devices, companies have fewer and fewer opportunities to wriggle out of the warranty.
Where are the reforms most likely to have an impact?
The new rules leave serious used boat dealers with little choice but to subject offered ships to a comprehensive check-up and to prepare a condition report; otherwise, they quickly fall into a liability trap. From my point of view, the quality of the used boats on offer will therefore be much easier to assess in the future. And if there are defects in new or used boats in the first twelve months, the dealer has to prove that he is not responsible. Retailers will therefore have to give warranties much more often. Guarantees also need to be made clearer.
What is changing with regard to the liability of the dealer for material defects in the boat?
Enforcing warranty claims is becoming easier in many cases. It is likely that all contract designs and general terms and conditions that retailers used by 2021 will become illegal in essential parts and lose their effect. When it comes to updating digital plotters, for example, the dealer assumes the function of a service station for the electronics manufacturer at full risk. In fact, this will hardly have an effect on new boats. But this also applies to used boats. Where this can become a liability risk for dealers.
Can the case law on car sales be transferred to boats, for example when it comes to damages due to incorrect factual information?
In principle, the law does not differentiate between the purchase of a boat and a car. Many principles and rules can be transferred 1:1. In the area of yacht trading, however, there is little case law on the numerous technical features.
That doesn’t sound good for the dealers. What do they have to do now?
We will see that there will be many traders who will face serious problems without adjustment. Livelihoods will be lost there. Reputable dealers will adapt. Due to the additional effort, commercially traded boats will probably become more expensive in the end.
What exactly do you mean by “will adapt”? Can you give examples?
Many dealers will concentrate on the market for young used vehicles and switch to brokerage for older used vehicles. In the new boat trade, shipyards and dealer associations will of necessity have to provide more information, document more and regulate more than before. Trouble will continue.
What loopholes will retailers still have in the future?
The legislature has done a good job. We lawyers can always think of something, but there are no really big loopholes.
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