§ 477 BGB - The reversal of the burden of proof in favor of the animal buyer

Preliminary remarks.

The reversal of the burden of proof applies only in the context of a consumer purchase. Prerequisite for its existence is a certain constellation: An entrepreneur sells something to a consumer. In this case, the law takes into account the experience and market power of the entrepreneur and therefore restricts freedom of contract to protect the buyer.
An entrepreneur is any person or company that offers goods on the market on a regular basis and permanently for money (in this case, animals – dogs or horses – to be sold). A registration in the commercial register is irrelevant. Above all, this term of the entrepreneur includes animal traders, commercial breeders or farmers, trainers as well as stable or dog premises owners. However, it is a question in every single case, where to draw the line between commercial and hobby breeding, i.e. breeding for pleasure and not profit.

The reversed onus of proof .

After initial uncertainties it is now recognized that the regulation of § 477 BGB (German civil law code) is now also relevant for purchase of animals. Sometimes the problem rises whether the legal presumption – a defect apparent within 6 months after the sale is regarded as having been there at the time of the sale – applies because of incompatibility with the nature of the defect or good.
According to the latest ECJ and BGH jurisprudence, the buyer merely has to prove that the animal is in a condition within six months since the transfer of risk that would constitute a defect, if this had already existed at the time of the passing of the risk.
If the buyer can prove that the animal had a defect within this time limit, it is presumed by the law that this defect, but no consequential damage from this, already existed at the time of the passing of the risk to the buyer, i.e. the handing over.
If the buyer proves that the animal is currently somehow not well, the seller has to prove that this was not the case at the time of the sale. So he - and not the buyer - usually has to prove what's wrong, because one can only define since when a certain defect exists, if one knows what specific defect is found.

Incompatibility with the nature of the defect and the nature of the good.

The assumption that a defect, which occurs within six months of delivery, existed already at the time of delivery, doesn´t apply if this assumption is incompatible with the nature of the good or the nature of the defect. In this context, the sale of used goods and the sale of sick animals are mentioned in the lawmakers motions. By contrast, meanwhile the BGH has (judgment of 29.03.2006, VIII ZR 173/05) has stated that § 477 BGB is also applicable to animal purchases: It even applies even to an only seasonally visible, but possibly already broken out allergy.
A defect of the object of sale, which is based on a faulty and possibly disproportionate use is not a legal defect, but since the jurisdiction of the ECJ is very buyer-friendly, the vendor can only request that an appraiser correctly defines positively what is actually wrong with the animal. Since the ECJ decision, the previous German prevailing case law should become null and void, so that one can´t rely on decisions prior to the game changing ECJ judgment of 04.06.2015, C-497/13, and the following BGH judgment of 12.10.2016, VIII ZR 103/15.