OGH: Duplicate certificate of conformity as an hitch to good faith

Oct 20, 2021 Benn-Ibler Rechtsanwälte

In its case law, the Supreme Court (Oberster Gerichtshof, OGH) handled the question of whether and, if so, to what extent the commercial purchaser of a used vehicle can act in good faith due to the existence of a mere duplicate certificate of conformity.

In May 2014, the plaintiff, which was a car dealership, sold a used car for EUR 9,400. It was agreed that payment in instalments (24 monthly instalments) under retention of title was agreed until the purchase price had been paid in full, which is why the plaintiff did not hand over the original certificate of conformity. After the conditional buyer had paid only four monthly instalments, he sold the vehicle to the defendant, a used car dealer, in August 2014. Shortly thereafter, the latter resold the vehicle for EUR 8,500 to a bona fide customer, who thereby (legally) acquired ownership of the vehicle.

The plaintiff demanded that the defendant compensate her for the value of the vehicle, as she had been dishonest when purchasing the vehicle and the plaintiff lost her ownership rights to the vehicle through the resale. The court of lower instance assumed an acquisition of good faith. However, the OGH disagreed.

The overall situation had pointed to dishonesty on the part of the seller, which should have been recognisable to the defendant. The presentation of a mere duplicate certificate of conformity, which was apparently only issued at the time of the signing of the purchase contract, and the fact that the vehicle had been purchased from the seller only a few months earlier are reason enough to seek further investigation. Above all, a used car dealer should be presumed to know that dealers who sell vehicles subject to retention of title usually retain the original certificate of conformity.

According to previous case law, it is precisely because of this that a purchaser of a motor vehicle must be particularly careful to ensure that he is not encroaching on the rights of others. Accordingly, the defendant should have demanded the presentation of a sales contract from the seller. The prerequisite for the acquisition of good faith of an item sold by a non-owner is the purchaser's honesty. In the present case, the dishonesty of the used car dealer results from the lack of investigation despite the existence of suspicious circumstances.

OGH 3 Ob 91/21k (01.09.2021)