Case law

  • Case Details
    • National ID: 28 U 150/02
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 13/05/2003
    • Court: Oberlandesgericht (Appellate court, Hamm)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 2, 1.
  • Headnote
    1. If the seller fails to mention the fact that a vehicle for sale is an imported vehicle, this does not constitute a non-conformity within the meaning of § 434 BGB (Bürgerliches Gesetzbuch – German Civil Code = Art. 2 Dir. 99/44/EC). However, If his conduct is culpabale, then he is liable to the buyer by virtue of culpa in contrahendo (breach of pre-contractual duties).
  • Facts
    The claimant seeks rescission ab initio of a contract of sale for a Renault Espace entered into with the respondent on 7.3.2002, as the respondent failed to mention at conclusion of contract that the vehicle was imported from Italy. The LG (Landgericht – district court) allowed the claim. The Berufung (appeal on points of fact and law) was unsuccessful.
  • Legal issue
    In the view of the OLG (Oberlandesgericht – higher regional court) Hamm, the vehicle did not exhibit a non-conformity within the meaning of § 434 BGB. A non-conformity can only come into consideration if the quality of the subject of sale is flawed. Although the notion of quality encompasses all factual economic or legal circumstances relating to the good, the nature or circumstance relating to the quality of the subject of sale must be rooted in the subject of sale and directly (physically) affect it for a certain period of time. The fact that the vehicle was imported does not in itself fall within the definition of non-conformity. As the import itself does not represent a non-conformity, the consequences thereof submitted by the claimant, namely that it is not included in recall actions, a reduction in value due to the duty of disclosure in a resale and refusal to repair by garages, do not ground a non-conformity within the meaning of § 434 BGB. A rescission of the contract according to §§ 437 No. 2, 433, 323, 326 (5), 346 (1) 1 BGB is therefore excluded due to absence of non-conformity.
    However, according to the view of the OLG Hamm, a right of rescission follows from the respondent’s culpable conduct at conclusion of contract according to §§ 280 (1), 311 (2) No. 1 in conjunction with § 241 (2) BGB. The respondent culpably, at least negligently, breached its duties at conclusion of the contract of sale of the Renault Espace. A duty was incumbent on the respondent to inform the buyer that the Renault Espace was an individual import from Italy and this individual import should have been noted in the registration document. This fact means that the vehicle has a considerably lower resale value. Thus, it is clear that the respondent objectively failed to mention a price-influencing factor to the claimant at conclusion of contract, which more than inconsiderably adversely affects the market value of the vehicle. According to the principle of good faith, the claimant had an expectation – without having to ask - to be informed of the import of the vehicle and a to corresponding entry in the registration document by the respondent.
  • Decision

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