DE: VW diesel scandal - assessment of the benefit of use with leasing

Nov 3, 2021 Benn-Ibler Rechtsanwälte

In September 2021, the German Federal Supreme Court (Bundesgerichtshof, BGH) ruled that no claim for reimbursement of the leasing instalments can be made for a leased vehicle affected by the VW emissions scandal. This is because the benefit of a leasing contract is already realised if the vehicle was usable for the entire period of the lease. Unlike with the purchase of a car, no compensation can be claimed with this.

The plaintiff leased an Audi Q5 affected by the VW emissions scandal from Volkswagen Leasing GmbH for four years with monthly leasing instalments of EUR 437 and a special payment of EUR 5,000. The plaintiff then demanded damages from the defendant for intentional, immoral damage under Sections 826, 31 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) for all leasing instalments paid minus compensation for use.

In principle, the claim under Sec. 826 BGB is to be reduced by the benefits of use that accumulated over time to the injured party, because the injured party must not be placed in a better position than he would have been in without the damaging event. The BGH ruled that in the case of leasing, an investment decision was made that was fundamentally different from a purchase. This decision justifies a different determination of the benefit of use to be taken into account. With a leasing contract, one acquires the right to use a vehicle for a certain period of time and under the conditions set by the lessor. The period-related use value in the case of leasing is thus offset against the leasing instalments paid. To the extent that this use is possible without restriction over the entire period, the advantage for which payment was made in the leasing contract has been fully realised. This advantage of use compensates for the financial disadvantage incurred by the lessee as a result of the payment of the leasing instalments. Accordingly, the lessee has not suffered any loss. This situation is then comparable to that of a car buyer who has fully utilised the entire expected mileage of the vehicle. An exception could only be made if a later purchase of the vehicle was already agreed when the leasing contract was concluded.

BGH VII ZR 192/20 (16.09.2021)