Anyone who has bought a new diesel that has been affected by the VW emissions scandal cannot simply withdraw from the sales contract and demand the money back from the dealer. This was announced by the Federal Court of Justice (BGH) in Karlsruhe on Tuesday for a judgment announced at the end of September.
The case concerns a man who, unlike the vast majority of diesel plaintiffs, has not sued Volkswagen as a manufacturer for damages. Instead, he wants his car dealer to take back the vehicle he bought shortly before the diesel scandal broke out and to reimburse him for a large part of the purchase price.
Software update unreasonable?
In principle, new car buyers have special rights in the first two years if it turns out that their car has defects. Under certain conditions, they usually have the choice between a free repair or an exchange for another, new car. Withdrawal from the purchase contract is only possible if the attempted repairs have failed or the retailer refuses to repair the goods despite being requested to do so.
The plaintiff in the case had given his dealer no deadline, but wanted to get out of the contract immediately. The Cologne courts had considered this to be justified: The man would not be expected to have the inadmissible exhaust technology in the car removed with the software update offered. This ultimately comes from the same car manufacturer who caused the deficiency through malicious behavior. In addition, negative effects on the car or driving operations “based on general life experience” are conceivable.
What is the dealer’s fault?
According to the BGH, this should not have been assumed without a thorough examination and expert advice. It is not excluded that the basis of trust between buyer and seller is disturbed here. The highest civil judges, however, point out that, according to their previous jurisprudence, a seller “does not have to be responsible for malicious actions by the manufacturer”.
In addition, the software update was checked and approved by the responsible authorities at the time in question. The Cologne Higher Regional Court now has to take another closer look at the case after the dealer’s appeal. (dpa / mer)
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