Rescission due to disturbing noise on the vehicle?
Wednesday, 06 March 2013 12:36
OLG Frankfurt - Judgment of 28.02.2013 - 3 U 18/12
Press release of the Frankfurt Higher Regional Court:
In a judgement of 28 February 2013, the Higher Regional Court of Frankfurt am Main ordered a well-known car manufacturer to take back a defective new car after rattling noises continued to occur on the underbody despite a number of repair attempts.
The plaintiff purchased a new car for around € 33,000 from a branch of the defendant car manufacturer in the Rhine-Main region, which was delivered to him at the end of January 2008. Subsequently, the plaintiff complained about a number of defects, some of which were remedied by the defendant. In July 2009, the plaintiff complained for the first time about rattling noises on the underbody of the vehicle.
After the vehicle had been to the defendant several times for repair attempts - according to the plaintiff's claim 22 times - the plaintiff withdrew from the purchase contract in September 2009 and demanded repayment of the purchase price. The defendant argued that some of the defects had not existed when the vehicle was handed over and that the rattling noise was only an insignificant defect.
As the Regional Court had already done after obtaining an expert opinion, the Higher Regional Court now also upheld the plaintiff on appeal on the merits. The plaintiff was entitled to rescind the purchase contract because of the rattling noise from the front wheel suspension, which could not be eliminated despite the many attempts at repair and the cause of which could not be determined with certainty until today. Even if the expected costs of remedying the defect were below the de minimis limit of 1 % of the purchase price, the materiality of this defect resulted from its subjective significance.
The expert had vividly described that the noise occurred irregularly but was clearly perceptible and therefore gave the passengers the justified feeling that something was wrong with the vehicle. However, a vehicle in which the passengers did not feel safe was defective.
However, the plaintiff had to take into account a compensation for the use of the vehicle for the 83,000 kilometres he had travelled with it, which in this case was to be estimated at around € 13,000.