The “Bundesgerichtshof” (German Federal Supreme Court) stated that the seller could rely on the validity of the exemption clause (sale without any guarantee) since § 475 BGB (based on Art. 7 Para 1, sentence 1 of the Consumer Sales Directive) does not apply in this case.
The claimant wanted in fact to buy the car not for commercial reasons but for private use as a consumer (Definition of consumer in § 13 BGB, German Civil Code). But, according to the court, the provisions of consumer protection in §§ 474 et seq. BGB do not apply if the purchaser acts as a trader by conclusion of the contract and therefore simulates an intended commercial purpose.
In its opinion, this conclusion results from the basic principle of good faith (venire contra factum proprium) being stipulated in § 242 BGB and the legislative material to the German Consumer Protection sections.
In this context, the Court furthermore examined the European principle of whether the interpretation conforms to the directives. The relevant criteria for the definition of the term “consumer” were in fact not explicitly determined in Art. 1 para 2 lit. a. Consumer Sales Directive, but without any doubt in case of fraudulent deception the directive’s provisions of consumer protection would not apply for the benefit of the purchaser. The court argues that the principle of good faith is, on the one hand, acknowledged in Community Law (ECJ, ECR, 1976, 1851, para 11 and ECJ, ECR, 1984, 2417, para 18). On the other hand, the notion of consumer is used in the directives and intergovernmental conventions, such as in Art. 13 para 1 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and in Art. 5 Convention on the Law Applicable to Contractual Obligations. Thus, their relevant legislative motives could be consulted in order to interpret the notion of consumer in the European law of the directives, including the Consumer Sales Directive.
From this analysis arises that someone who pretends to be a trader and willfully deceives the other party, cannot be considered to be a “consumer”.