Case law

  • Case Details
    • National ID: 6 U 24/05
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 07/12/2005
    • Court: Oberlandesgericht (Appellate court, Naumburg)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 3, 2. Consumer Sales and Guarantees Directive, Article 4 Consumer Sales and Guarantees Directive, Article 6 , 2. Consumer Sales and Guarantees Directive, Article 7, 1.
  • Headnote
    If a vehicle which had been exported to a member state of the European Union as new, has been re-imported to Germany as a second-hand car, the trader (seller) has to disclose this fact to the buyer.
    The fact that a car has been re-imported currently is a significant price-defining factor on the German market for second-hand cars. If the seller omits to disclose this fact to the buyer, the latter can avoid the contract of sale under § 123(1) BGB on the grounds of deceit.
    Neither the Directive 1999/44/EC of the European Parliament and the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees nor the judicature of the European Court of Justice expressly state that the fact that a second-hand car has been re-imported is to be qualified as a defect in the terms of § 434 BGB. However, it can on the other hand not be deducted from the Consumer Sales Directive to the advantage of the seller that the second-hand car dealer (retail dealer) may conceal this fact from the consumer (buyer).
  • Facts
    The defendant operated a business dealing in second-hand cars. The plaintiff wanted to return a second-hand car bought from the defendant versus the repayment of the purchase price, since the defendant had concealed the fact that the car had been re-imported from Spain. The claim had been dismissed in the first instance.
  • Legal issue
    The Higher Regional Court has for the most part upheld the plaintiff’s appeal. The plaintiff was entitled to a right to unwind the contract of sale under § 812(1)(2) 1st case BGB, since she had avoided the contract on the grounds of deceit under §§ 142(1), 143(1), 123(1) BGB. The right to avoid the contract arose from § 123(1) BGB. The defendant or her employees had induced the plaintiff to make her declaration of intent by deceit by concealing the fact that the car had been re-imported.

    In principle, each party was responsible for safeguarding its own interests. Thus, there was no general duty to disclose all facts which could possibly be relevant to the other party’s decision-making. On the other hand, facts which were clearly and evidently of crucial importance for the decision-making of the other party had to be disclosed without prior question. Accordingly, deceit in the terms of § 123 BGB required that the seller had concealed a fact he was obliged to disclose while being aware of the fact and at least tacitly accepting that the buyer did not know about it and would not have concluded the contract of sale (or at least not to the agreed conditions), if he had known about it. In the current case the defendant would have had to disclose that the Audi A 2 in dispute had been re-imported from Spain. This fact was a price-defining factor. According to established case law, the fact that a second-hand car had been re-imported by a second-hand car dealer created an obligation to disclose this fact, since the initial registration in Germany was a significant price-defining factor, considering that – at the time these cases had been decided – the price structure on the market for imported cars produced considerably lower prices. A potential buyer would have been suspicious due to the fact that the car had been imported, which would have been documented in the registration document. This distrust had resulted in a lower market price, albeit a certain change could be noticed recently.

    Community law did not withstand this obligation of disclosure. The opposite could neither deducted from the EC treaty nor from the Consumer Sales Directive or the judicature of the European Court of Justice.

    The culpable omission to disclose the fact that the car had been re-imported also was concurrently causative for the conclusion of the contract. It was the experience gained from daily life that the omission of a fact reducing the value of the good purchased was at least partly causative for the decision to conclude the contract.
  • Decision

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