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

Since 2007, we have been fighting against large corporations on behalf of consumers nationwide. Due to a large number of recent positive judgments, the chances of success for consumers have continued to increase enormously. Our initial consultation is free and non-binding. Get advice without obligation.

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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.

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