Case law

  • Case Details
    • National ID: 15 U 2190/05
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 12/10/2005
    • Court: Oberlandesgericht (Appellate court, München)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 3, 2.
  • Headnote
    The buyer of a defective second-hand car must give the seller the opportunity to remove the defect by repair. However, he is not obliged to transport the vehicle to a garage situated outside his place of residence. Rather, the seller generally has to inspect the car for hidden defects at the buyer’s place of residence. Alternatively, he may transport the car to a garage for inspection and repair and later bring it back, each time at his expenses and his risk.
    The seller in principle has to effectuate the removal of defects owed due to the non-conformity of goods sold at the place they are in at the time the buyer exerts this remedy.
  • Facts
    The plaintiff by way of consumer sale on 13 February 2003 bought a second-hand car from the defendant. He claims the right to rescind the contract as well as damages amounting to EUR 24.368,33 together with interest versus the restitution of the car on the grounds of an alleged defect of the car. Additionally, he applies for the declaration of the court that the defendant is in default of acceptance with respect to the car. In the first instance, his claim was upheld for the most part.
  • Legal issue
    The Higher Regional Court has upheld the plaintiff’s appeal but dismissed the defendant’s appeal.
    The plaintiff was entitled to rescind the contract as well as to damages under §§ 437 no. 2, 323, 346 et seqq. BGB (and § 325 BGB) and under §§ 437 no. 3, 281 BGB respectively. A removal of the defects had not taken place, although the defendant had assured that this would happen. It was possible that the parties were both in doubt where and at whose expenses the removal had to be effectuated. The claim for the removal of the defect is a modified claim for specific performance. The place it had to be performed was not necessarily identical with the place the contract was concluded. The decisive provision was § 269 BGB. Since no place had been expressly specified in the contract, the circumstances and the nature of the obligation had to lead to the conclusion that the place to remove the defect was the buyer’s place of residence. Upon the conclusion the contract, it had been clear to both parties that the vehicle would be located there. This was the place where the seller had to perform his obligation. In addition, this consequence was made perfectly clear by § 439(2) BGB with respect to the costs: According to the traveaux préparatoires as well as to the clear wording of the provision, the buyer was to be kept free of charge of any further expenses, the buyer was to bear any costs accruing for transport, work and working materials. Thus, place of performance (§ 269 BGB) for the removal of the defect was the place where the purchased good was located at the time this remedy was exterted (here: buyer’s place of residence).
    Accordingly, the defendant would have had to remove the defect at the buyer’s place of residence. Thus, he had the choice to either inspect and repair the car at the buyer’s place of residence or alternatively to transport the car to a garage for inspection and repair and later return it to the buyer, each time at his expenses and his risk. However, all his had not happened. Instead, the defendant had refused to remove the defect entirely.
  • Decision

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