Wednesday, December 8th, 2021
Claims against car dealers
BGH strengthens those affected in the VW emissions scandal
Victims and dealerships have long argued about how to deal with manipulated new VW vehicles. The Federal Court of Justice is now clarifying that a simple and inexpensive software update is not enough for the retailer.
Diesel buyers who argue with their dealership about replacing a new car affected by the VW emissions scandal are getting a tailwind from Karlsruhe. The Federal Court of Justice (BGH) decided that retailers cannot simply refer such customers to the much cheaper software update.
In the first two years, buyers of new cars have the right to have a defect “removed completely, sustainably and professionally”. If the customer fears consequential damage from the update, it may be up to the dealer to dispel such doubts in court. If necessary, an expert must be consulted.
In the specific case, it is about a VW Caddy, of which there is now only the much more expensive successor model. To this end, the judges decided that the buyer may have to pay part of the price difference out of pocket.
A replacement delivery is not fundamentally impossible within two years of the conclusion of the contract – not even if the successor model is already on the market, the BGH affirmed its earlier jurisprudence. However, if the list price is more than a quarter higher, an additional payment by the buyer must be checked.
The seller’s burden of proof
The BGH now referred the case back to the higher regional court. This is to determine whether the new model is actually that much more expensive than the one originally purchased. The burden of proof applies here to the seller, decided the BGH. The buyer’s claim should not be undermined, nor should the seller be released from any associated burden. That is why the buyer usually only has to compensate up to a third of the difference, in exceptional cases up to half.
The BGH also stated that a seller could only refuse a new delivery if the defect was completely eliminated by the repair offered and no further defects resulted. The buyer in the current case had argued that the software update with thermal windows would result in further deficiencies. The defendant dealership had to prove that this was not the case.
Because of the VW scandal engine EA189, only very few buyers are arguing with their car dealer, according to Volkswagen. There is still a low double-digit number of proceedings. Most of those affected have sued VW as a manufacturer for systematic deception for damages.