Case law

  • Case Details
    • National ID: X ZR 133/03
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 30/11/2004
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 4, 1.
  • Headnote
    1. An exclusion of liability for damages caused to a vehicle due to ordinary negligence represents an incommensurate disadvantage to the customer contrary to the principle of good faith (§ 307 para 1 BGB – Bürgerliches Gesetzbuch – German Civil Code).
  • Facts
    The claimant seeks damages against the respondent carwash operator due to alleged damage to his vehicle by two wash cycles on 13th and 23rd October 2000. Following completion of each respective wash cycle, the claimant reported to the respondent that the right wing mirror was considerably damaged. The respondent accepted liability for these damages and notified its company liability insurance thereof. The claimant primarily demanded the costs for the repairs. The respondent, whose liability insurance declined to pay out, refused to pay for the repairs on the grounds that it was impossible that the damage could have been caused by a fault in the car wash.
    Clause No. 5 of the respondent’s general terms and conditions contains a limitation of liability for deliberate culpable conduct and gross negligence, which is objectively restricted to damages directly caused to fitted components on the car body as well as to damages to paintwork and scratches. In addition, the respondent excluded itself by reference to clause no. 4 from liability for all consequential damages, irrespective of the kind of damage and from liability for any damage likewise resulting from ordinary negligence.
    The AG (Amtsgericht – in this sense small claims court) rejected the claim because it could not be excluded that the wing mirror was unknowingly damaged prior to commencement of both wash cycles. The Landgericht (district court) disallowed the claimant’s appeal on account of the limitation of liability to damage caused intentionally and by gross negligence contained in the respondent’s general terms and conditions, but it granted leave to appeal on the issue of the validity of such a standard contract term. The Revision (appeal on points of law) was successful and resulted in the judgment being overturned and referred back to the previous instance.
  • Legal issue
    In the view of the BGH (Bundesgerichtshof – Federal Supreme Court) the claimant’s suit for damages does not fail due to the respondent’s exclusion of liability for ordinary negligence, as the corresponding clauses do not withstand the content review of § 9 para 1 AGBG (Allgemeine Geschäftsbedingungsgesetz – Standard Contract Terms Act; now: § 307 para 1 BGB) and are hence void.
    The BGH stated in its judgment that a clause in standard contract terms is to be deemed unreasonable if it deviates from the contractual agreement the parties would have reached had they negotiated the point at issue. The exemption of liability for damages caused to the vehicle through ordinary negligence represents an incommensurate disadvantage to the customer contrary to the principle of good faith (§ 307 (1) BGB) – even if the exclusion of liability is restricted to particularly vulnerable areas attached to the external bodywork such as windscreen wipers, mirrors and aerials. For on the one hand such a clause contradicts the customer’s justified confidence that his vehicle will emerge undamaged from the wash cycle, and on the other hand such a clause is irreconcilable with the expectation that the customer would receive compensation should damages arise due to fault of the car wash operator. This expectation is particularly justifiable from the perspective of risk control. Only the operator can control the risk by means of constant maintenance, inspection and surveillance of the machinery and through the careful selection of the operating personnel, whereas the customer entrusts his vehicle to the company and has no influence over what happens next.
    Furthermore, the exclusion of liability for ordinary negligence represents an incommensurate disadvantage, at least in respect of foreseeable and typical consequential damage.
    Given that, in light of the above, the claimant’s suit for damages cannot be excluded, the contested judgement cannot be upheld.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result