Case law

  • Case Details
    • National ID: 7 U 193/06
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 04/04/2007
    • Court: Oberlandesgericht (Appellate court, Celle)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 1, 1.
  • Headnote
    If the subject matter of a contract of sale is used privately as well as in the course of a business (dual use), the categorization of the contract in commercial or consumer sale depends on the intention of the parties, which is to be established via interpretation of the contract. Thus, the decisive elements are generally how the buyer presents himself to the seller and how this appearance can be interpreted from the point of view of an objective seller, taking into account the seller’s private and professional situation.
  • Facts
    The parties are fighting over the unwinding of the sale of a second-hand car.
    The plaintiff is a lawyer. According to the order form/invoice dating from 9 December 2003, the plaintiff bought an as good as new second-hand car (Mercedes-Benz E 500, first registration on 22 May 2002) on the terms and conditions for new vehicles for EUR 52.000. He claims that shortly after the purchases several defects occurred, which mainly were situated in the car’s electronic system. By letter dating from 9 June 2004, the plaintiff, referring to 2 futile attempts to have the car repaired, declared the rescission of the contract and demanded it to be unwinded.

    After the hearing of evidence, the Regional Court has upheld the claim. The defendant has lodged an appeal against this judgement. The defendant states that there was no assumption as per § 476 BGB of the defect already having existed at time of the delivery of the car because the contract of sale in question was no consumer sale in the terms of § 474 BGB. This was because the buyer had appeared as acting in the course of a business upon the conclusion of the contract. He had purchased the car in his capacity as a lawyer expressly acting in course of a business and giving the address of his law firm. This behaviour was to be legally attributed to him. Contrary to the Regional Court’s opinion it was irrelevant, to what purpose the car was used in the following.

    The plaintiff defends the contested judgement and claims that he did not appear to be acting in the course of a business upon the conclusion of the contract. In this context he refers to the order form, where under the heading “ordered under the following terms and conditions in the course of my business/professional activity” the box “NO” had been checked.
  • Legal issue
    The Higher Regional Court has for the most part dismissed the defendant’s appeal and only made some small-scale adjustments with respect to the default interest and the deductible compensation for the use of the defective car.

    As far as it was of relevance for the qualification of the contract in question as a consumer sale in the terms of § 474 BGB, the Regional court’s assessment of the presented evidence with respect to the actual circumstances after the conclusion of the contract, taking into account the mixed private and professional use of the car (“dual use”), was not to be objected. The plaintiff’s tax counsellor, his wife as well as one of his employees have confirmed in detail that the car has predominantly been used for private purposes. In addition, the fact that the plaintiff used the car on a daily basis to get to his office from his apartment cannot be qualified as part of a self-employed professional activity in the terms of § 14 BGB. Rather and irrespective of the qualification under the tax laws, under civil law only those rides with the car in dispute can be qualified as part of a self-employed professional activity under civil law which were taken in the course of his activity as a lawyer, such as to visit clients or to go to court.

    In addition, the categorization of the contract in dispute under commercial or consumer sale does not depend on the actual use of the car after the conclusion of the contract. Rather, the decisive element is the purpose of the transaction based on the intention of the parties, which is to be established via interpretation of the contract. Although it left the question unanswered in the end, the Federal Court’s judgment quoted by both parties (judgement of 22 December 2004 – VIII ZR 91/04) already indicates that according to the traveaux préparatoires the decisive element are the perceptible circumstances of the conclusion of the contract. In addition, it refers to the notion of “consumer” under European Community law, according to which a person cannot be qualified as dealing as a consumer, if he or she (the recipient of the goods or services) poses as a professional and the other party acts bona fide.

    In a later finding made by another senate, the Federal Court has expressly stated that according to the wording of § 13 BGB, the decisive element was the objectified purpose of the contract. It depended on the fact whether the buyer’s demeanour was materially to be attributed to the private or professional area. In the first case, he would be acting as a consumer, in the latter in the course of a business. A person who entered into business dealings and posed as businessman indicated that he was submitting himself to commercial law and on the other hand wanted to rely on it. Thus, this person had to bear the consequences of this behaviour and could not validly claim later that he was all along dealing as a consumer due to other circumstances (Federal Court of Justice, court order of 24 February 2005 – III ZB 36/04).

    Accordingly, the same must apply for the opposite case (as it was here): If a person who indeed runs a business or works as a self-employed professional uses the object of purchase for both private and professional purposes (“dual use”), but does not reveal to the seller that he is willing to submit himself to commercial law and on the other hand wants to rely on it, but poses as a “private citizen”, he or she must be treated accordingly, that is, be treated as the buying party of a consumer sale under § 474 et seqq. BGB. At any rate does the content of the contractual agreement (which has to be established via interpretation if necessary) have to be of the utmost importance for the qualification of contract in dispute as consumer or commercial sale, if – as was the case here - the private and professional use are more or less balanced and it can thus be excluded that the protection of the consumer sale provisions has been obtained fraudulently and mala fide. Ultimately, the decisive element is how the buyer appears to the seller and how this appearance can be interpreted from the point of view of an objective seller, against the background of the actual situation, especially taking into account the seller’s private and professional situation.

    In that, a more generous approach applies than under European Community law, under which any relation to a professional activity impedes the qualification of a person as a consumer (ECJ, judgement of 20 January 2005 – C 464/01). Community law allows for the extension of consumer protection guaranteed by the relevant directives, which all contain minimum clauses. The German legislator has made use of this option in § 13 BGB. Under this provision, only those transactions serving predominantly professional purposes cannot be qualified as consumer contracts.

    Accordingly, the contract in dispute qualifies as a consumer sale, although the defendant – claiming that the plaintiff had expressly bought the car in his capacity as a lawyer for the law firm and therefore in the course of business – consequently comes to the opposite conclusion. However, the court’s assessment is backed by the escrow, which states under the heading “ordered acting in the course of a business or a self-employed professional activity” the box “NO” has been checked and additionally under the heading “name/company name” only the plaintiff’s name without any reference to his profession or the law firm is stated. It is true that the stated address belongs to the law firm. However, this could only be perceived via comparison with another address (such as the one stated on the plaintiff’s professional writing paper). Therefore this fact cannot back the allegation that the plaintiff was evidently acting in the course of a business upon the conclusion of the contract.
  • Decision

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