Published online by Cambridge University Press: 10 August 2009
A contracts to sell a harvesting machine to B, a farmer, which B requires to enable him to harvest his asparagus crop. In the pre-contractual negotiations, A told B that the machine would be able to harvest one acre a day, but when B comes to use it he discovers that it can only harvest half an acre a day. B is unable to obtain an alternative machine in time to save the half of the crop that cannot be harvested before it is ruined. He now also has a machine which he knows will be inadequate for next year's harvest. What liability (in contract, tort, restitution, or any other form of liability), if any, does A have to B?
Would it make a difference if A had made no statements about the capacity of the machine, but instead during the negotiations B told A that he expected that the machine would be able to harvest one acre a day?
Since a contract has been concluded, the rules on ‘warranty’ (Gewährleistung) apply. The fact that express stipulations were made in the precontractual negotiations does not affect the application of §§922ff. ABGB. These rules have been changed most recently by the Warranty Amendment Act BGBl I 2001/48, which came into effect on 1 January 2002. The person suffering from a breach of express warranty must first claim repair or replacement of the non-complying delivered good.