BGH-Beschluss zum sofortigen Rücktritt vom Kaufvertrag im Dieselskandal

By order of 29 September 2021, ref.: VIII ZR 226/19, the Federal Court of Justice (BGH) decided to refer the case back to the Higher Regional Court (OLG) Munich for a new hearing. The case concerned a VW Golf Plus 1.6 TDIA success for the plaintiff, as the Munich Higher Regional Court must now decide again, taking all circumstances into account, whether an immediate withdrawal from the purchase contract in the diesel scandal is possible.

The reason: The Munich Higher Regional Court should have investigated the plaintiff's claim that the software update led to consequential damage and that the vehicle had suffered a reduction in value. The plaintiff had already offered evidence for his claim in the first instance through an expert report. This expert report was intended to prove that the vehicle in question had the defect of emissions scandal and thus results in a significant loss of value. The software update could also cause damage to the vehicle. However, for whatever reason, the court did not address this and dismissed the appeal by order because it was obviously hopeless. The BGH sees this as a violation of the plaintiff's rights, as his arguments were not sufficiently taken into account.

Diesel scandal: Impossibility of subsequent performance

Withdrawing from the purchase contract in the diesel scandal is not possible without setting a deadline for remedying the defect. However, the BGH did not consider setting a deadline for subsequent performance to be necessary, namely if the remedy was unreasonable for the plaintiff. The vehicle's defect is due to the fraudulent conduct of VW AG. Therefore, the plaintiff does not have to rely on VW AG to remedy the defect - by carrying out the software update. After all, negative effects on the vehicle are entirely possible and likely.

The Higher Regional Court must first clarify, through appropriate findings and expert reports, whether and to what extent the software update offered by the seller actually leads to the consequential damage claimed by the buyer.

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