What the 10 percent line from case law means for electric cars and how the thresholds apply in individual cases.
At what point does a deviation in the range of an electric car constitute a defect? Any deviation beyond normal measurement tolerances can constitute a defect, but a threshold of more than ten percent is generally considered a guideline for rescinding the contract. This article explains the relevant limits with concrete examples.
Range as a characteristic: is there actually a defect?
The range of an electric car is one of the key characteristics on which a buyer relies. Legally, it is a quality characteristic within the meaning of Section 434 of the German Civil Code (BGB). A vehicle is free from defects if it has the agreed-upon quality and simultaneously exhibits the characteristics that a buyer may expect based on public statements made by the manufacturer. The WLTP range stated in brochures and advertising shapes this expectation.
An important distinction, often overlooked, is that since the modernization of the law of obligations, there is no longer a materiality threshold for determining whether a defect exists at all. Any deviation exceeding unavoidable measurement and manufacturing tolerances already constitutes a defect. The extent of the deviation only becomes relevant when considering the resulting rights.
Is your electric car not reaching its stated range? Have it checked to see if there is already a defect and what claims you may have as a result.
The 10 percent line: where it comes from and what it means
Regarding the crucial question of when a deviation is significant enough to justify rescission of a contract, there is currently no supreme court ruling on the range of electric cars. Therefore, the established case law of the Federal Court of Justice concerning increased fuel consumption in combustion engine vehicles serves as a benchmark.
The following applies: If a new car's fuel consumption deviates from the manufacturer's specifications by less than ten percent, the breach of contract is considered minor, and rescission of the contract under Section 323 Paragraph 5 Sentence 2 of the German Civil Code (BGB) is excluded. However, if the deviation exceeds ten percent, the threshold of materiality is generally crossed, and rescission is possible. The Wuppertal Regional Court has applied this principle to the range of electric cars and affirmed a significant defect in the case of a deviation of approximately 18 percent.
The ten percent figure is not a technical tolerance limit, but rather a threshold for evaluation. It refers to the extent to which the defect impairs the value and usability of the vehicle.
Whether your deviation reaches the ten percent mark depends on the correct benchmark. We will examine how your case falls into this category.
Material defect, but no right of withdrawal: what applies in the case of minor deviations
If the deviation is below the ten percent threshold, this does not mean that you have no rights. The defect still exists; only the right to withdraw from the contract, as the most far-reaching legal consequence, is generally excluded. You retain your other rights regarding defects.
- Subsequent fulfillment: You can demand rectification or replacement.
- Reduction: They keep the vehicle and demand a partial refund of the purchase price.
- Damages: Reimbursement of certain costs, such as for an expert opinion, may be considered.
Especially when the deviation is just below the threshold, a thorough examination is worthwhile, because the limit is not a rigid calculation rule, but rather an assessment based on the circumstances.
Even below the ten percent threshold, you still retain rights. We'll tell you which course of action is best in your case.
Concrete examples: what different deviations mean
A numerical example makes the thresholds tangible. Let's assume an electric car is advertised with a WLTP range of 350 kilometers. Depending on the actual range achieved, different legal consequences arise.
- Approximately 322 kilometers, about 8 percent deviation: A defect exists, but the deviation is generally not sufficient grounds for rescission of the contract. A price reduction is a possibility.
- Approximately 308 kilometers, about a 12 percent deviation: The ten percent threshold has been exceeded; a resignation is regularly possible.
- Approximately 287 kilometers, about 18 percent deviation: The deviation is significantly above the threshold, comparable to the case decided by the Wuppertal Regional Court.
The percentages always refer to the advertised WLTP value, not to your individual everyday range. The examples given are guidelines and do not replace an individual assessment.
Calculate your deviation, but don't rely on it alone. An expert assessment will show whether the threshold has actually been reached.
What determines the relevant comparison
For the percentage calculation to be legally valid, the correct benchmark is crucial. The decisive factor is the comparison under WLTP conditions, i.e., using the same standardized procedure with which the range was advertised. A single everyday drive in cold weather or with a sporty driving style is not meaningful for this purpose.
Furthermore, an unavoidable measurement tolerance must be taken into account, which, depending on the method, is approximately one to two percent. Only beyond this range does a legally relevant defect begin.
Another clue can be the battery. If the traction battery loses capacity faster than would be expected given its age and usage, this suggests a defect. In the Wuppertal case, this was precisely a key indicator.
The right benchmark determines success or failure. We ensure that your deviation is reliably determined.
This is how you prove the deviation
Whether the relevant threshold has been reached can only be determined with solid evidence. The more thoroughly you document, the stronger your position.
- Secure manufacturer's specifications: Keep the brochure, website information and purchase contract with the advertised WLTP value.
- Log range: Record how far you actually get over several full charging cycles.
- Expert opinion: Reliable proof is usually provided by a measurement under conditions close to WLTP.
- Keep an eye on deadlines: Claims for defects in a new car typically expire two years after delivery.
Rogert & Ulbrich has developed the assessment of material defects, rescission and compensation for use in tens of thousands of cases of the emissions scandal and is transferring this experience to the range and battery cases of electric cars.
Do not draw hasty conclusions from a single trip before the deviation has been properly determined.
The sooner your case is reviewed, the clearer your options will be. Secure your claims while the deadlines are still open.
Rogert & Ulbrich – Your lawyers specializing in electric vehicle defect law
Rogert & Ulbrich represents consumers nationwide in vehicle defect law. The law firm of Dr. Marco Rogert and Tobias Ulbrich has handled over 40,000 cases and filed more than 25,000 lawsuits in the emissions scandal. This experience in litigation is now benefiting buyers of electric cars.
We will assess the extent of your range deviation, classify it legally, and quantify your claims. We will negotiate out of court with the retailer and manufacturer. If no satisfactory solution can be reached, we will enforce your rights in court, from contract cancellation and price reduction to compensation for damages.
Is your electric car not achieving its promised range? Get in touch and secure your rights.
