DE: Burden of proof rules - purchase of consumer goods by entrepreneur

Feb 4, 2022 Benn-Ibler Rechtsanwälte

If there is any doubt as to whether a real estate agent has purchased a vehicle for his business or himself, a consumer goods purchase must be assumed – this was the decision of the German Federal Supreme Court (Bundesgerichtshof, BGH).

In the case at hand, a real estate agent registered as a businessman had wanted to purchase a Mercedes for his private collection of old cars. He conducted the preliminary contract negotiations via his business e-mail address. After an appraisal of the vehicle was carried out, the real estate agent purchased the vehicle from a commercial used car dealer. The purchase contract was in the real estate agent's civil name. One month after handover, some defects appeared. The real estate agent claimed damages. The BGH had to decide whether the rules on the burden of proof of the Commercial Code (Handelsgesetzbuch, HGB) or consumer law apply here to determine the consumer or entrepreneur status.

The BGH rejected the application of the rules of the HGB, Section 344 para 1 HGB, and applied consumer protection law. Section 344 para 1 HGB stipulates that legal transactions carried out by a businessman are to be regarded as a commercial transaction in case of doubt.

According to the senate, Sec. 344 para 1 HGB does not apply in the context of classifying the legal transactions of a businessman as consumer or entrepreneurial transactions if the businessman is a natural person (sole trader), as in the present case. Rather, Sec. 13 of the German Civil Code of Law (Bürgerliches Gesetzbuch, BGB) (old version) applied as a more specific and more recent provision. However, due to the negative wording of the second half-sentence of Sec. 13 BGB (old version), the legal transaction of a natural person is generally to be regarded as consumer action. Any remaining doubts are not at the expense of the consumer. As a result, this means that in case of doubt, the vehicle was purchased by the real estate agent as a consumer.

Thus, the burden of proof rule of Sec. 476 BGB (old version) applies. Accordingly, the real estate agent only has to prove that there is a defect in the vehicle within six months of purchase. It is then assumed that the defect already existed at the time of the conclusion of the purchase contract.

BGH VIII ZR 187/20 (10.11.2021)