DE: Diesel scandal - mandatory top-up for better replacement model

Mar 18, 2022 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) once again had to address a buyer's claim for supplementary performance with regard to a defective new vehicle due to an inadmissible deactivation device.

In response to the decision as to when a rectification of defects is to be considered unreasonable and the buyer can subsequently immediately withdraw from the purchase contract without setting a deadline, there has now been a further development of the case law with regard to the replacement delivery of a significantly higher-quality successor model within the scope of the claim for supplementary performance.

In the case at hand, the plaintiff purchased a new Volkswagen Caddy III diesel vehicle from the defendant, a car dealer, in 2015, which was equipped with the inadmissible deactivation device. After the diesel scandal became public, the defendant informed the plaintiff in December 2016 that a software update was available to eliminate the deactivation device. However, the plaintiff rejected this software update and demanded the replacement delivery of a defect-free new vehicle. On the grounds that the costs of a replacement delivery were not in proportion to a rectification by means of the software update, the defendant ultimately refused a subsequent delivery.

In this regard, the BGH held that the subsequent delivery was not automatically impossible because a successor model had come onto the market in the meantime. The seller's obligation to procure also includes the new successor model. Thus, in principle, such a replacement delivery of a significantly more expensive successor model can be demanded, insofar as the list price of the new model exceeds the old one by a quarter, but only against an appropriate additional payment by the buyer. The buyer does not have to pay the difference in full, but only half of it at the most, as otherwise his claim for supplementary performance would be undermined.

If the buyer is not prepared to make any payment, the seller's obligation to procure the successor model shall lapse. However, any further warranty claims remain unaffected.

BGH VIII ZR 190/19 (08.12.2021)