Verbraucherfreundliches Urteil zum Restschadensanspruch

In Wolfsburg, after the first judgments of plaintiffs who filed their lawsuit in 2020 or later without taking prior measures to stop the statute of limitations from running out, have almost certainly popped a few champagne corks. The claim for damages against the Volkswagen Group, confirmed by the Federal Court of Justice (BGH) in May 2020, was rejected by the majority of the regional courts on the grounds of limitation, and the "residual damage claim" under Section 852 of the German Civil Code (BGB) intended by the legislature for such cases was declared inapplicable if the car was bought second-hand. However, if the car is a new car, the regional courts saw it differently in most cases and confirmed the claim, but had difficulty with the amount of damages.

In a case we conducted before the Higher Regional Court (OLG) Stuttgart, the 1st Civil Senate confirmed the first instance judgment in a very clear and precisely formulated judgment and rejected the appeal of the VW AG In addition, the Senate also happily cleared up some of the 'ifs' and 'buts' in Volkswagen AG's argument and sentenced Volkswagen to pay damages and to take back the defective vehicle as in a conventional procedure without limitation period issue (OLG Stuttgart judgment of November 9th, 2021, case number 1 U 379/20).

The plaintiff had bought the car directly from Volkswagen AG in 2013 for around €36,000 as a new car. However, the lawsuit against Volkswagen was not filed with the regional court in Ellwangen until August 2020. Actually, too late, as the Senate also confirmed in its judgment.

Residual Damage Claim – Hopeful Tones

But only actually, because the legislator has here provided the injured party with another claim – the “remaining claim for damages“ according to § 852 BGB. This is a claim based on tort, which can still be claimed even after the statute of limitations has expired. This claim only expires in ten years from its creation.

The main purpose of this provision is to ensure that a person who has caused harm to another person through an unlawful act does not continue to enjoy an unlawfully obtained advantage.

Contrary to the statements of Volkswagen AG, the application of Section 852 sentence 1 of the German Civil Code cannot be excluded on the grounds that the plaintiff did not suffer any economic loss as a result of the obvious immoral damage. Section 852 of the German Civil Code extends the tort claim into the statute of limitations, and the provisions of Section 852 of the German Civil Code regarding the claim for residual damages do not change the liability requirements.

The Senate did not accept the argument put forward by VW that there was no particular risk of litigation due to the possibility of a model declaratory action and that a claim for residual damages should therefore not be considered. This would reverse the aim expressly stated by the legislature that the illegally obtained advantage does not remain with the person who caused the damage in cases of limitation. In doing so, the Senate referred directly to the statements in the Federal Printed Paper on the introduction of the model declaratory action: "If the parties cannot reach an agreement - for example in the context of out-of-court dispute settlement - and the parties concerned refrain from filing a lawsuit, the illegally obtained profit remains with the provider, who thereby gains a competitive advantage over law-abiding competitors."

In the opinion of the Senate, the amount of the claim should be quantified exactly as in the usual lawsuits in the emissions scandal - and should not be limited to the profit made. In this case, the plaintiff was awarded just under €20,300 for his vehicle.

Residual damage claim gives legitimate hope

We at Rogert & Ulbrich recommend having your claims reviewed. Even if you think your claims have expired, it may be worth having them reviewed again. Our initial consultation is free and non-binding. We have already won numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.