The Federal Court of Justice strengthens the reversal of the burden of proof in consumer goods sales

The Federal Court of Justice (BGH) has clarified the scope of the reversal of the burden of proof under Section 477(1) of the German Civil Code (BGB) in a manner that is clearly favourable to consumers. 

Facts of the case 

The Eighth Civil Division of the BGH had to rule on two cases: in one case, a second-hand car purchased a few weeks earlier was completely burnt out; the comprehensive insurance company sought recourse against the dealer by way of subrogation. In the second case, the purchaser of a scooter had an accident just one day after taking delivery due to severe swaying whilst riding and sought, amongst other things, rescission of the contract and compensation.

The courts of appeal had dismissed the claims in each case on the grounds that other causes (e.g. animal bites, arson, driving errors or external influences) were also conceivable, meaning that the reversal of the burden of proof under Section 477(1) of the German Civil Code (BGB) did not apply. The Federal Court of Justice (BGH) has expressly rejected this narrow view.

Key points regarding Section 477(1) of the German Civil Code (BGB) 

In the case of a sale of consumer goods, Section 477(1) of the German Civil Code (BGB) provides that it is presumed that the goods were already defective at the time of the passing of risk, i.e. upon handover, if, within one year (old version until the end of 2021: within six months) of the transfer of risk, the goods exhibit a condition that deviates from the requirements under Section 434 of the BGB. A different rule applies only if this presumption is incompatible with the nature of the goods or the defective condition. The burden of proof for fully rebutting the presumption, i.e. for the question of whether the goods were in fact free from defects at the time of the passing of risk, lies with the seller as a trader. Merely casting doubt on the presumption is not sufficient; rather, full proof to the contrary of the presumed fact is required.

Decision of the Federal Court of Justice

The Federal Court of Justice (BGH) has now ruled in favour of consumers: For the reversal of the burden of proof under Section 477(1) of the German Civil Code (BGB) (both the old and new versions) to apply, it is sufficient that a sign of a defect appears within the relevant period which is at least possibly attributable to a material defect existing at the time of the passing of risk.
The presumption only ceases to apply if only other causes are conceivable which are not attributable to the seller. A mere statement by the seller that the damage ‘could also have been caused by other means’ is not sufficient for this purpose.

In the view of the Federal Court of Justice (BGH), Section 477(1) of the German Civil Code (BGB) does not require a definitive determination of the cause of the defect. Rather, the decisive factor is that the symptom that has occurred, given the nature of the damage, may seriously indicate a material defect as the trigger. The legal presumption is only rebutted if the seller provides evidence that the damage was caused solely by another circumstance that arose only after the transfer of risk.

Although the decisions still relate to Section 477 of the BGB in the version applicable until the end of 2021, However, as the provision in Section 477 of the BGB (new version) has been continued in substance and the period of presumption has even been extended to one year, the judgments are also of considerable significance for the currently applicable law of sale.

Practical implications and conclusion 

The BGH’s judgments impose stricter requirements on the burden of proof. Sellers must demonstrate, in a substantiated and verifiable manner, that the cause lies exclusively with a factor for which they are not responsible. At the same time, there is a significant shift in risk in the early phase following handover. Particularly in the case of technically complex products, it is becoming more difficult to rely on alternative causes of damage across the board. 

With these judgments, the BGH once again strengthens the position of consumers in terms of evidence and, at the same time, curtails attempts to undermine the statutory reversal of the burden of proof through mere theoretical alternative explanations. Sellers should take this into account when drafting contracts, maintaining documentation and conducting internal quality assurance. For sellers acting as traders, the litigation risk in warranty disputes increases considerably, particularly where technical causes are not documented in a timely manner. 

(see Federal Court of Justice, judgments of 6 May 2026 – VIII ZR 73/24 and VIII ZR 257/23)