Federal Court of Justice

Communication of the press office


No. 79/2018

Hearing on the 9th of May, 2018, 11.00 o'clock – in the matter of

VIII ZR 26/17 (Asks on back winding up of a bill of sale

in the way of the "big compensation" after because of

of the same lack already of explained decrease)

Circumstances:

The plaintiff, a limited liability company, closed a leasing contract about one of the defendants made and for the sales offered new vehicle of the brand Mercedes-Benz. After the leasing society had acquired the vehicle to a purchase price of 99,900€ of the defendants, it was handed over in March, 2014 to the plaintiff.

In the period of October, 2014 and February, 2015 the plaintiff brought the vehicle because of different defects (among the rest: Short circuit in the control device of the seat setting, exposure of the gear, several mistakes in the electronics) all together seven times in an establishment of the defendants. The reprimanded defects were removed in each case by the defendants.

The plaintiff is of the view that all appeared defects are due to a mistake susceptibility being based on production-conditioned high-class faults of the vehicle and explained under appeal here with her plaint towards of the defendants the decrease of the purchase price (§437 to No. 2, §441 paragraph 1 sentence 1 Civil Code) at the rate of 20 percent. In the future she visited once more an establishment of the defendants to the removal of other defects (defect of the Pulsationsdämpfers of the hydraulic pump; groundless lighting up of the atomic, biological and chemical lamp). The first mentioned lack was repaired, with regard to the second objection the defendant was not able to recognise a lack. Short time later the plaintiff moved her complaint desire from that point of view that she did not require because of the production-conditioned mistake susceptibility asserted by her of the vehicle any more the repayment itself from the decrease of the purchase price of proving amount, but within the scope of the so-called big compensation (compensation instead of the whole achievement, §437 No. 3, §281 paragraph 1 sentence 3, paragraph 5 Civil Code) now the back winding up of the whole bill of sale.

Present process course:

In the preauthorities the complaint has had quite predominantly success. There are present the district court as well as the higher regional court of it gone out that the plaintiff could go over because of from her criticised mistake susceptibility of the vehicle in spite of the before already explained decrease in this respect of the purchase price still efficiently to a claim to so-called big compensation and with it for the entire back winding up of the bill of sale.

With her check admitted by the senate the defendant follows up her dismissal of action desire.

The decisive regulations are:

§437 Civil Code rights of the buyer with defects

If the thing falls short, the buyer is able if the conditions of the following regulations are given and untill another is determined,

[…]

2. after §§440 to withdraw 323 and 326 paragraphs 5 from the contract or after §441 diminish the purchase price and

3. after §§440, 280, 281, 283 and 311a compensation […] ask.

§441 Civil Code decrease

(1) Instead of withdrawing, the buyer can diminish the purchase price by explanation towards the shop assistant. […]

[…]

(4) If the buyer has paid more than the diminished purchase price, is to be refunded of the Mehrbetrag of the shop assistant. […]

§281 Civil Code compensation instead of the achievement because of not or not as owed of produced achievement

(1) 1as far as the debtor does not produce the due achievement or not as owed, the believer can require paragraph 1 compensation instead of the achievement under the conditions §280 if he has determined to the debtor unsuccessfully of an adequate term for the achievement or subsequent performance. […] 3having the debtor the achievement as owed does not cause, the religious compensation cannot ask instead of the whole achievement if the duty injury is unimportant.

[…]

(5) If the religious compensation asks instead of the whole achievement, the debtor is entitled to the reclaim of the performed […].

Preauthorities:

District court of Stuttgart – judgment from the 20th of May, 2016 – 23 O 166/15

Higher regional court of Stuttgart - judgment from the 26th of January, 2017 – 19 U 90/16

Karlsruhe, 23rd of April, 2018

Press office of the Federal Court of Justice
76125 Karlsruhe
Phone (0721) 159-5013
Fax (0721) 159-5501