Exchange? Money back? When a bottle of wine corks, there are often annoying discussions between customers and retailers or winemakers. Lawyer Nadine Liesching explains what to do - and who has what rights.
Lawyer Nadine Liesching from the law firm HWLP in Munich specialises in legal issues in the wine industry.Many wine lovers are well aware of the issue - and dread it: Wines can "cork" despite all precautions and controls, making them unpalatable. Despite ever-improving production processes, this still happens quite frequently. Here are a few figures from the wein.plus encyclopaedia: In 2022, around 258 million hectolitres of wine were produced worldwide. Around two thirds of this volume was bottled. This means that around 36 billion 0.75 litre bottles were sold. Of these, 80 per cent were sealed with natural corks, resulting in 29 billion 0.75-litre bottles. If only one per cent of these bottles were contaminated with the cork-triggering agent trichloroanisole (TCA) in 2022, this means that 290 million undrinkable bottles ended up in wine lovers' cellars - or on their tables - worldwide.
If a wine bottle with a TCA defect has only recently been purchased from a winemaker or wine merchant, whether online or locally, and stored properly at home, private customers are protected by the statutory warranty rights in the event of discussions with the winemaker or wine merchant. The "corking" of a wine constitutes a material defect within the meaning of Section 434 BGB, as the wine does not have the agreed - or expected - quality and is also not fit for normal use.
The situation is different with tartar. It is a natural substance and has no influence on the flavour and quality of a wine. Tartar can occur in dissolved form in any wine. Therefore, tartrate does not constitute a defect in the legal sense - just like the sediment in red wine.
In cases of wine bottles contaminated with TCA, consumers have these rights:
In the case of corked wine, only the subsequent delivery of a new bottle can be considered. To do this, it is necessary to report the defect to the winegrower or wine merchant. Ideally, you should go to the retailer or winery with the faulty bottle of wine and ask for a new bottle. Otherwise, a phone call is sufficient to report the fault.
If no more bottles of wine from the same vintage or quality class are available, or if the replaced bottle is also corked, customers can demand a reduction in the purchase price. Under certain circumstances, however, they can also cancel the contract and receive a full refund. However, this depends on the specific situation and the goodwill of the winegrower or wine merchant.
These rights apply to customers buying from a winery or wine shop as well as to online orders. If the wine was ordered from the winegrower's or wine merchant's online shop, the replacement and subsequent delivery of a faultless wine will be sent to the specified address. However, the winemaker or wine merchant does not have to bear the costs if the customer wishes to have the wine delivered to a location other than the original delivery address.
These warranty rights apply for a period of two years from delivery of the wine. Retailers and wineries cannot restrict or exclude these rights in their general terms and conditions or in their contracts with consumers. The statutory two-year period cannot be shortened in this way either.
Furthermore, the statutory reversal of the burden of proof applies: according to Section 477 of the German Civil Code (BGB), it is much easier for consumers to prove that the wine is corked and therefore faulty. For a period of one year after delivery, the burden of proof that the wine was corked before purchase or dispatch (transfer of risk) lies with the winegrower or wine merchant.
Winegrowers and wine merchants are entitled to investigate whether the wine complained about by the customer is actually corked. To do so, they can demand the return of the faulty bottle - but at their own expense. Before they have to accept part of the purchase price or the customer's cancellation of the entire contract and repay the full purchase price, they have the right to supply a new and equivalent bottle of wine.
If a wine merchant has purchased the wine from a winery or importer, he also has the option of asserting the same rights as the customer against the contractual partner by way of so-called "entrepreneur recourse" . If the customer has demanded the delivery of a new bottle or a reduction in the purchase price, the retailer can claim full compensation directly from the winemaker or importer without setting a deadline.
In the case of a corked wine, consumers have clear warranty rights against the winemaker or wine merchant. However, it is important to act immediately in the event of a cork defect and request a subsequent delivery from the winemaker or wine merchant. It is also necessary to store the wine for evidence purposes and return it on request.
However, the aim of a cork complaint should always be to find a fair solution for all parties involved. Because quite honestly: in most cases, it is not the responsibility of the winemaker or wine merchant if a wine bottle has faulty cork tones. With a few exceptions, the fault arises during the production of the cork itself.