DE: VW diesel scandal: Withdrawal only with prior setting of a time limit

Dec 1, 2021 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) had to decide whether buyers of a vehicle affected by the diesel scandal can withdraw from the purchase contract even if they have not previously given the seller an opportunity to remedy the defect.

Unlike most diesel plaintiffs, in this case a man did not sue the manufacturer Volkswagen for damages, but demanded that his car dealer withdraw from the purchase contract and thus reimburse the paid purchase price. Withdrawal is generally possible insofar as a material defect exists and a reasonable time limit for subsequent fulfillment has been set. A time limit may be dispensable if there are special circumstances which justify the immediate exercise of the withdrawal after weighing the interests of both parties, i.e. the rectification of the defect is unreasonable and therefore not an acceptable solution. This may be the case if a defect was fraudulently concealed and the basis of trust subsequently ceases to exist.

In the opinion of the BGH, withdrawal from the purchase contract is not possible without first setting a time limit. The basis of trust may be disturbed if the seller has acted properly at the time of the conclusion of the contract, but the manufacturer of the vehicle has put it on the market with an inadmissible deactivation device known to and concealed by the manufacturer and the seller is now solely responsible for the rectification in the form of a software update developed by this manufacturer. Whether this is the case depends on the specific circumstances of the individual case. In particular, it must be examined whether there is a risk of further attempts to deceive by the manufacturer. Unacceptability can also result from the fact that a software update that is only offered as a remedy could eliminate the existing inadmissible defeat device, but could demonstrably lead to other defects. Also, according to the previous case law of the BGH, a seller does not have to accept responsibility for the manufacturer's fraudulent conduct.

BGH VIII ZR 111/20 (29.09.2021)