Which way out of the purchase contract is possible and when, what deadlines apply, and what remains with the insolvent dealer?
For many, a motorhome is the second largest purchase after real estate. If the contract needs to be reversed, three options are available: withdrawal, cancellation, and rescission. These have different requirements, different deadlines, and, most importantly, different parties involved. Rogert & Ulbrich will assess which option is appropriate in your case and who will ultimately be liable.
Three ways out of the purchase agreement and why the choice determines the outcome
Anyone wishing to return their motorhome and receive a refund has several legal avenues to explore. These options are not mutually exclusive, but lead to significantly different outcomes. Rescission of the contract requires a defect and generally necessitates setting a deadline for rectification. Cancellation of the contract does not require any defect, but is only applicable to certain sales channels or financing arrangements. Challenging the contract due to fraudulent misrepresentation requires proof of deception, but overcomes hurdles that prevent the other two options from being pursued.
The three routes at a glance:
- resignationThe legal basis for the claim is Sections 437 No. 2, 323, 346 of the German Civil Code (BGB). A prerequisite is a material defect at the time of the transfer of risk, generally an unsuccessful deadline for subsequent performance, and a defect that is not merely insignificant.
- revocationThe legal basis for claims is Sections 355 and 312g of the German Civil Code (BGB) for distance selling or contracts concluded away from business premises; for financing, Sections 495 and 358 of the BGB also apply. A defect is not required.
- challengeThe legal basis for a claim is Section 123 of the German Civil Code (BGB) in cases of fraudulent misrepresentation or unlawful duress. In such cases, the contract is deemed void from the outset according to Section 142 of the German Civil Code (BGB), and restitution is governed by the law of unjust enrichment.
- damagesIn addition, claims under §§ 437 No. 3, 280, 281 BGB may be considered, as well as tort claims, for example under § 823 para. 2 BGB in conjunction with § 263 StGB against acting persons.
Before making a statement, you should be certain which course of action is viable. A premature withdrawal without setting a valid deadline can weaken your position and complicate later negotiations.
Rescission due to material defect: setting of deadlines, materiality and burden of proof
Rescission of the contract is practically the most common course of action. It requires that the motorhome was already defective at the time of delivery. The relevant legal provision is Section 434 of the German Civil Code (BGB), which distinguishes between subjective, objective, and assembly requirements. A defect therefore exists not only when an expressly agreed-upon characteristic is lacking, but also when the vehicle does not conform to the usual characteristics of comparable motorhomes.
Before withdrawing from the contract, you must generally give the seller the opportunity to remedy the defect in accordance with Section 439 of the German Civil Code (BGB). Set a reasonable deadline for this in writing and describe the defect specifically. Setting a deadline is only unnecessary in exceptional cases, such as in the event of a serious and definitive refusal or if the remedy has failed. With an insolvent seller, remedying the defect is often practically impossible, which may make setting a deadline unnecessary, but this must be demonstrated in the event of a dispute.
Three factors regularly determine success:
- SignificanceAccording to Section 323 Paragraph 5 Sentence 2 of the German Civil Code (BGB), rescission of the contract is excluded in the case of an insignificant breach of duty. Case law bases this on the cost of remedying the defect in relation to the purchase price. In cases of moisture damage and structural damage to motorhomes, this threshold is frequently exceeded.
- Burden of proofIn the case of consumer goods purchases, Section 477 of the German Civil Code (BGB) stipulates that a defect appearing within the first twelve months is presumed to have already been present at the time of delivery. After this period, the burden of proof lies with you, which necessitates an expert opinion.
- statute of limitationsClaims for defects expire two years after delivery, according to § 438 para. 1 no. 3 of the German Civil Code (BGB). In the case of used car purchases, this period can be reduced to one year for consumers under the conditions of § 476 para. 2 of the German Civil Code (BGB), but only by express and separate agreement.
Document the defects early on with photos, measurement logs, and workshop reports. Proving your case later without this documentation is significantly more complex and ultimately less certain.
Revocation: When it takes effect and why financing is the stronger leverage
The right of withdrawal has a crucial advantage: it requires neither a defect nor deception. However, it does presuppose that a right of withdrawal actually exists. This is generally not the case with purchases made in a retail store. The situation is different with distance selling, i.e., contracts concluded exclusively by telephone, email, or online form, as well as with contracts concluded outside of business premises.
The cancellation period is fourteen days according to § 355 para. 2 of the German Civil Code (BGB). If the customer was not properly informed about their right of cancellation, the period does not begin. However, in the case of the purchase of goods, the right of cancellation expires no later than twelve months and fourteen days after the conclusion of the contract, according to § 356 para. 3 of the German Civil Code (BGB).
Therefore, the most economically important approach is a different one: the revocation of the financing agreement. For a general consumer loan, the revocation period under Section 356b of the German Civil Code (BGB) only begins once the contract contains all mandatory information as required by Article 247 of the Introductory Act to the German Civil Code (EGBGB). Unlike with the purchase of goods, the law does not stipulate a fixed maximum period. If mandatory information is missing or incorrect, revocation may still be possible years after the contract was concluded.
If the purchase agreement and loan agreement form an economic unit, a linked contract exists according to § 358 of the German Civil Code (BGB). The revocation of the loan then also covers the purchase agreement, and the reversal of the transaction is handled through the bank. This is precisely why financing is the crucial factor when dealing with an insolvent retailer. You can find further information in our section. banking law.
Submit your financing agreement and all attachments for review, even if you consider it unremarkable. Whether a mandatory disclosure is missing can only be determined by examining the complete contract.
Challenge due to fraudulent misrepresentation: the way around exclusion and deadlines
The right to contest the contract under Section 123 of the German Civil Code (BGB) applies if the seller has deceived you about a material fact. Typical examples with motorhomes include concealing accident or water damage, manipulated mileage, false information about the year of manufacture or first registration, and concealing known defects in the vehicle's construction. Concealing existing insolvency when an advance payment has been agreed upon can also constitute deception.
The right to challenge the law has three advantages that make it valuable in difficult situations:
- No exclusion of warrantyA seller cannot invoke an agreed exclusion of liability under § 444 of the German Civil Code (BGB) if they have fraudulently concealed the defect. This is particularly relevant in private sales or sales on behalf of clients.
- No deadline setNo deadline for subsequent performance is required. The contract becomes void from the outset due to the declaration of avoidance pursuant to Section 142 of the German Civil Code (BGB).
- Longer periodThe challenge must be declared within one year of discovering the deception, according to § 124 of the German Civil Code (BGB). In cases of fraudulent concealment, the limitation period for claims based on defects is also governed by the standard limitation period according to § 438 para. 3 of the German Civil Code (BGB), which extends the time frame.
The price to pay is the burden of proof. You must demonstrate and prove that you were deceived and that this deception was the cause of your purchasing decision. Therefore, advertisements, chat histories, emails, and witnesses are crucial. Where deception is suspected, it is also necessary to investigate whether criminal investigations are underway and whether these could give rise to claims against the individuals involved.
Save your listing, purchase agreement, and all communication before ads are deleted. Our website provides information on claims related to fraudulent sales offers. Online fraud.
The insolvent retailer: which path leads nowhere and who pays instead
All three avenues are initially directed against the seller. If the seller is insolvent, your claim for reimbursement becomes a simple insolvency claim under Section 38 of the German Insolvency Code (InsO) and is therefore subject to distribution quotas. Registration in the insolvency schedule under Section 174 of the German Insolvency Code (InsO) remains necessary, but it is rarely the economically decisive measure. The real question is whether there is a solvent third party.
We regularly check these recipients:
- Financing bankIn the case of a linked contract, you can raise objections from the purchase agreement against the bank pursuant to Section 359 of the German Civil Code (BGB) and refuse repayment of the loan. A valid revocation pursuant to Section 358 of the German Civil Code (BGB) covers both contracts. Therefore, the reversal of the transaction is directed against a solvent credit institution.
- Payment service providerIf payment was made by credit card or via a payment service, a chargeback may be possible. Short deadlines and formal requirements for the justification apply.
- DisposalIf you have already acquired ownership of the vehicle, it does not form part of the insolvency estate. In this case, you have a right of segregation under Section 47 of the German Insolvency Code (InsO), regardless of any distribution quota. The decisive factors are agreement and transfer of ownership or a valid possession agreement.
- People involvedIf advance payment was demanded shortly before insolvency, even though insolvency was already certain, claims against the management may be considered, for example for delaying insolvency proceedings or for fraud.
- manufacturer's warrantyRegardless of the retailer's insolvency, a separate manufacturer's warranty may exist. It does not replace a refund, but can cover repair costs.
Which of these options applies depends on your documents and the payment method. You can read more about the recovery process after a provider's insolvency in our article. Camping provider insolvent. For general information on vehicle conflicts, please see our section. Automotive.
Pursue the various avenues in parallel, not sequentially. Those who wait for the insolvency quota to be determined will miss the deadlines for chargebacks and registration.
What you can expect economically: compensation for use, interest and costs
Reversing the transaction does not mean you will receive a full refund and otherwise be in the same position as if you had never made the purchase. According to § 346 of the German Civil Code (BGB), any received goods or services must be returned, and any benefits derived from them must be surrendered. Therefore, you will generally owe compensation for the value of the goods driven.
In practice, the calculation is linear: the purchase price is compared to the kilometers driven and the expected remaining mileage. For motorhomes, courts regularly assume a higher total mileage than for passenger cars, which significantly reduces the deduction. The specific amount depends on the court and is justified during the proceedings.
Other items that should be included in the invoice:
- Registration and transfer costs: As wasted expenses, they are considered within the framework of damages, but not automatically in the case of a simple withdrawal.
- Installations and conversionsSolar panels, awnings, and auxiliary batteries must be assessed separately. Save your invoices.
- financing costsIn the case of a linked contract, interest and processing fees already paid must be included in the reversal process.
- Stand costs and replacement procurementAdditional costs for a necessary alternative solution may be reimbursable if they were proven and necessary.
Before returning the item, calculate the final cost. We have information on our experiences with return and billing disputes on our website. Lease and rental car return We have compiled and address general questions about the vehicle in the traffic law.
Rogert & Ulbrich – Your lawyers for the reversal of motorhome purchases
Rogert & Ulbrich represents consumers nationwide in matters relating to vehicles, banking, and insolvency. Attorneys Dr. Marco Rogert and Tobias Ulbrich and their team have years of experience working at the intersection of sales law, banking law, and insolvency law. This experience has given us in-depth knowledge of the contract drafting used by motorhome dealers, the argumentation strategies of financing banks, and the procedures involved in insolvency proceedings.
We examine which of the three options is most suitable for your case, ensure compliance with deadlines, and pursue your claims against the economically appropriate party. This includes reviewing the financing agreement for mandatory disclosures as well as assessing the evidence in cases of defects or fraud. If an out-of-court settlement cannot be reached, we will also represent you in court proceedings.
Is your motorhome defective, the dealer unresponsive or insolvent? Get in touch and let us review your options.
