- Federal Court of Justice confirms -

Claim for damages even after resale

Even after resale of the affected vehicle:
Claims for damages remain valid

On July 20, 2021, the German Federal Court of Justice (BGH) confirmed in two cases (Ref. VI ZR 533/20; VI ZR 575/20) that even if the vehicle in question has already been resold, the right to compensation does not lapse.

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The background

In 2014, both plaintiffs purchased a passenger car that was equipped with a type EA189 diesel engine. This engine contained an illegal defeat device that detected whether the vehicle was on a test bench or in normal road traffic. As a result, the nitrogen oxide emission limits were complied with during test bench operation, while at the same time they were massively exceeded during regular operation.

The courts regard the placing on the market of a vehicle with such a defeat device as immoral intentional damage (§ 826 BGB) to the purchaser. In principle, the purchaser is entitled to damages in the amount of the purchase price paid less compensation for use. In return, however, the purchaser must return the vehicle to the manufacturer.

The BGH also assumes the continued existence of the claim for damages in the case of a vehicle that has already been resold: As a result of the resale, the proceeds of the sale in line with the market would take the place of the vehicle to be surrendered and transferred by way of benefit sharing.

This means that instead of the otherwise required return of the car, these sales proceeds are simply to be deducted from the claim for damages. The purchaser can therefore claim back from the manufacturer the purchase price originally paid less compensation for use and less the sales proceeds.

Relevant in Fiat Ducato exhaust scandal

Since the diesel scandal has long since affected not only passenger cars and is increasingly catching up with the motorhome scene, motorhome buyers in particular should also be familiar with this consumer-friendly case law.

This is because it is important to bear in mind that the lower the sales proceeds in line with the market - and unfortunately these have often been very poor since the problem became known - the more remains of the claim for damages against the manufacturer.

What happens to the "change premium"?

In one of the two cases (Case No. VI ZR 533/20), the Federal Court of Justice also had to deal with the question of whether an exchange premium received by the purchaser should also be deducted from the claim for damages against the manufacturer.

Here, too, the BGH ruled in favor of the consumer and argued conclusively: Since the buyer received the exchange premium only due to his decision to change car or car brand, it is not related to the intrinsic value or value in use of the resold car and consequently the buyer may keep it in full.

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