BGH entscheidet über Ersatzlieferung eines Fahrzeuges mit unzulässiger Abschalteinrichtung

On July 21, 2021, the Federal Court of Justice (BGH) set the limits for replacement delivery of a successor model in the emissions scandal by ruling of the VIII Civil Senate (case number: VIII ZR 254/20). This means that the injured consumer can demand a replacement delivery of a successor model that has been manufactured in the meantime as part of his warranty rights for his defective new car. The prerequisite for this is that the consumer asserts his claim against his seller within two years of the conclusion of the contract.

Through this Verdict the BGH has confirmed its advisory decision of January 8, 2019 (case number VIII ZR 225/17). An installed engine control software that reduces nitrogen oxide emissions compared to normal driving when a test run is detected is an inadmissible defeat device.

replacement delivery in the form of the successor model

Vehicles with such an illegal switch-off device are already defective when they are handed over to the consumer. A successor model to the originally purchased vehicle model does not exclude the delivery of a replacement. This is despite the fact that they are usually more advanced. For example, due to changes in engine technology or advances in safety and assistance systems. Such a model change after a certain period of time is known to both buyers and sellers when purchasing a new car. Therefore, the consumer's right to a replacement delivery is not excluded by a successor model. In fact, this right also extends to the successor model.

The right to a replacement delivery generally exists two years after the conclusion of the contract

The BGH weighs the interests of both parties in its decision. In the context of an interpretation of the parties' wishes that is fair to both sides, the seller's obligation to deliver a replacement must be limited in time. This obligation is limited to the period in which the contracting parties could expect a warranty claim to occur - i.e. two years after the contract was concluded.

Your opportunities – Rogert & Ulbrich recommends

If you purchased your affected vehicle, for example a motorhome, as a new car in 2018/2019, you may be entitled to a replacement delivery. We would be happy to examine your claim as part of a initial consultation.