§852 Archive - R&U https://ru.law/en/tag/§852/ Consumer lawyers Mon, 08 Jul 2024 11:12:30 +0000 en-GB hourly 1 https://wordpress.org/?v=6.8.5 https://ru.law/wp-content/uploads/2020/12/favicon-150x150.png §852 Archive - R&U https://ru.law/en/tag/§852/ 32 32 Dieselskandal in 2022 – Wie geht es weiter? https://ru.law/en/dieselskandal-in-2022-wie-geht-es-weiter/ Wed, 05 Jan 2022 09:27:29 +0000 https://ru.law/?p=23681 What's next for the diesel emissions scandal? The Federal Court of Justice (BGH) already clarified some fundamental questions in the diesel emissions scandal in 2021. But this year, too, […]

Der Beitrag Dieselskandal in 2022 – Wie geht es weiter? erschien zuerst auf R&U.

]]> What will happen next in the diesel emissions scandal? The Federal Court of Justice (BGH) has already clarified some fundamental questions in the diesel scandal in 2021. But there are still more events planned in Karlsruhe this year. On February 10, 2022, it will be clarified whether claims for damages have expired and what the remaining damages are. At the hearing, 5 cases will be dealt with directly and a decision will be made as to when the three-year limitation period for claims for damages by the vehicle buyer against Volkswagen AG began and whether, in the event of the limitation period, there is a claim for so-called residual damages under Section 852 S. 1 of the German Civil Code (BGB).

The affected vehicles were all purchased second-hand and diesel engines of the EA189 series (EU 5) equipped. 

Does VW have to pay remaining compensation?

In the so-called "residual damages claim" According to § 852 BGB, this is a claim based on unlawful acts, which can still be claimed even after the statute of limitations has expired. This claim only expires in ten years from its creation.  

The claims from the 5 proceedings were rejected in the previous instances due to the statute of limitations. The statute of limitations began in 2015, since from October 2015 onwards the plaintiffs were at least grossly negligent in their ignorance of the facts required for the statute of limitations to begin. The diesel scandal was omnipresent in media reports, so the plaintiffs must have been aware of it. There is also no claim under Section 852 S. 1 of the German Civil Code, since this claim does not apply to used cars.

However, it remains questionable whether the courts can assume that the plaintiffs knew about the diesel scandal simply because of the extensive media coverage. Therefore, there is a need for further clarification in the diesel scandal, on which the judges of the Federal Court of Justice will comment.

It also remains questionable how Karlsruhe will comment on the claim under Section 852 S. 1 of the German Civil Code (BGB) with regard to used cars. In some cases, residual compensation is granted for used cars. In the case of a used car deal in which the plaintiff purchases the vehicle from a used car dealer or a private vehicle owner, the defendant has not gained anything. However, this should not preclude the claim for legal damages. The defendant has not gained any income directly from the plaintiff, but rather from the original contractual partner. This should be sufficient to justify a claim for residual damages. When the vehicle was resold by the original purchaser to the plaintiff, the inflow of assets was maintained.

It will therefore remain exciting in 2022 to see how the Federal Court of Justice will comment on this and how the diesel scandal will continue.

Rogert & Ulbrich recommends for 2022

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 been able to numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

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]]> Verbraucherfreundliches Urteil zum Restschadensanspruch https://ru.law/en/verbraucherfreundliches-urteil-zum-restschadensanspruch/ Tue, 16 Nov 2021 11:43:34 +0000 https://ru.law/?p=22609 In Wolfsburg, the first judgments of plaintiffs who filed their lawsuits in 2020 or later without prior measures to suspend the statute of limitations may seem quite […]

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]]> 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.

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]]> Restschadensersatzanspruch greift auch bei Gebrauchtwagen https://ru.law/en/restschadensersatzanspruch-greift-auch-bei-gebrauchtwagen/ Fri, 10 Sep 2021 07:54:59 +0000 https://ru.law/?p=21031 Bislang entscheiden zunehmend Gerichte zugunsten der klagenden Verbraucher eines Neuwagens auch trotz einer Verjährung der Ansprüche und sprechen diesen einen sogenannten „Restschadensersatzanspruch“ zu. Das Landgericht […]

Der Beitrag Restschadensersatzanspruch greift auch bei Gebrauchtwagen erschien zuerst auf R&U.

]]> So far, courts are increasingly ruling in favour of complaining consumers of new cars, even despite the claims being time-barred and speak to them a so-called “remaining claim for damages" to.

The Stade Regional Court has now ruled in its judgment of 26 August 2021, file number 5 O 129/21, that the plaintiff is entitled to compensation in the case of a used car. The vehicle in question is a used VW Sharan with the engine type EA189The claim had already expired.

“Residual damages claim” can now also be asserted within 10 years for used cars

The remaining claim for damages is intended to enable the injured party to claim or collect the profit made by the manufacturer even after the statute of limitations has expired. The law refers to this as "gained at the expense of the injured party". This claim expires within 10 years of the claim arising - on the same day.

In the case of a used car deal, where the plaintiff purchases the vehicle from a used car dealer or a private vehicle owner, the defendant has not gained anything. However, this should not preclude the claim for legal damages. The defendant did not gain any income directly from the plaintiff, but rather from the original contractual partner. This should be sufficient to justify a claim for residual damages. When the vehicle was resold by the original purchaser to the plaintiff, the inflow of assets was maintained.

Rogert & Ulbrich recommends

We at Rogert & Ulbrich recommend having your claims examined. 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.

You might also be interested in:

Der Beitrag Restschadensersatzanspruch greift auch bei Gebrauchtwagen erschien zuerst auf R&U.

]]> Gerichte bejahen Restschadensersatzanspruch https://ru.law/en/gerichte-bejahen-restschadensersatzanspruch/ Wed, 02 Jun 2021 14:21:38 +0000 https://ru.law/?p=16584 Judgments by the Nuremberg-Fürth Regional Court and the Rottweil Regional Court now offer justified hope for compensation despite expired limitation periods. These courts affirmed this in their judgments of May 11, 2021 (Case No. 9 […]

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]]> Judgments by the Nuremberg-Fürth Regional Court and the Rottweil Regional Court now give legitimate hope for compensation despite the statute of limitations having expired. In their judgments of May 11, 2021 (case number 9 O 9278/20, Nuremberg-Fürth Regional Court) and May 10, 2021 (case number 2 O 525/20, Rottweil Regional Court), they affirmed the so-called residual compensation claim and ordered Volkswagen AG to take back the car and pay compensation - even though the plaintiffs only filed their lawsuits with the court in 2020.

While the Nuremberg-Fürth Regional Court awarded our client damages of almost €13,200 for his 10-year-old VW Touran with an EA189 diesel engine from Volkswagen AG, our client was even awarded damages of €15,640 plus financing costs paid by him for his over 9-year-old VW Amarok by the Rottweil Regional Court.

Limitation of residual damage claims only after 10 years

This option is provided by Section 852 of the German Civil Code (BGB), which guarantees the injured party the so-called residual compensation claim and only expires in the amount of the enrichment after 10 years from its creation, i.e. from the date of purchase. Those affected therefore still have the option of reclaiming what they obtained from Volkswagen through the purchase of the vehicle, provided that the purchase contract was concluded no more than 10 years ago. The purchase contract does not have to have been concluded directly with Volkswagen itself; an indirect inflow of assets, e.g. via contractual partners, must also be returned, according to the awarding courts.

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