BGH: Anspruch auf ein mangelfreies Ersatzfahrzeug

In its ruling of December 8, 2021, the Federal Court of Justice (BGH) ruled that the buyer of a defective new vehicle can, within the scope of his warranty rights, only demand the replacement delivery of a successor model that has now been manufactured against an appropriate payment. But this is only possible if the vehicle has a significant added value compared to the vehicle originally purchased (case number VIII ZR 190/19).

In this specific case, it concerns the claims of a buyer due to an illegal switch-off device in a defective new vehicle in the emissions scandal. The vehicle in question here is a VW Caddy III with the diesel engine EA189, which the buyer had purchased in June 2015 for a purchase price of € 19,910. In December 2016, a software update was to be installed, which was rejected by the buyer. Instead, in May 2017, the buyer requested that the seller replace the vehicle with a defect-free new vehicle, the successor model VW Caddy IV. This replacement delivery was rejected by the seller due to the disproportionate costs compared to installing the software update.

Further development of the BGH ruling of 21.07.2021

On July 21, 2021, the Federal Court of Justice had already ruled that the owners of illegally manipulated vehicles are entitled to the delivery of a defect-free replacement vehicle even if the respective dealer had previously offered them the installation of a software update (judgment of July 21, 2021, case number VIII ZR 254/20 et al.). With the current ruling, the Federal Court of Justice initially confirmed its ruling from the summer.

According to the BGH, a replacement delivery of a successor model should only be made with an appropriate additional payment if the list price of the new vehicle exceeds the price of the old vehicle by at least 25 percent. The buyer would then normally have to make an additional payment of one third of the difference. This should not cause too much damage to the dealer.

Furthermore, the replacement delivery of a new vehicle free of defects should not be impossible simply because a successor model has since come onto the market instead of the vehicle model originally purchased.

With regard to the question of the disproportionate costs of installing a software update, the BGH has ruled that subsequent delivery can only be refused if the defect in the form of the impermissible shutdown device is completely, permanently and professionally remedied. If consequential damage occurs as a result of the software update, the defect in question has not been remedied. The seller bears the burden of explanation and proof for these circumstances.

BGH: Rogert & Ulbrich continues to see positive prospects

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