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Proclaimed on:
29 April 2003
Chief Judicial Secretary
as clerk of the court
the office

in the litigation

Reference book: yes
BGHZ: yes
BGHR: yes

BGB § 249 Hb

The injured party who settles fictitious repair costs may use the hourly rates of a brand-affiliated specialist workshop to calculate the damage.
as a basis. The abstract average of the hourly charge rates of all representative brand and independent specialist workshops in a region does not represent the amount required for restoration as a statistically determined calculation factor.

BGH, Judgment of 29 April 2003 - VI ZR 398/02 - AG Hagen
LG Hagen

At the hearing on 29 April 2003, the VI Civil Senate of the Federal Court of Justice (Bundesgerichtshof) decided by the Presiding Judge Dr. Müller, the Judge
Diederichsen and Judges Pauge, Stöhr and Zoll

found to be right:

On the plaintiff's appeal, the judgement of the 1st Civil Chamber of the Regional Court of Hagen of 11 October 2002 is set aside.

The defendant's appeal against the judgment of the District Court of Hagen of 7 June 2002 is dismissed.

Order the defendants to pay the costs of the appeal.

By law


The plaintiff seeks compensation for residual property damage from a traffic accident, for the consequences of which the 1st defendant, as the other party to the accident, and the 2nd defendant, as the third party to the accident, are liable.
to 2 as the liability insurer in full. The plaintiff first registered the vehicle she was driving at the time of the accident on 18 May 2000, a Porsche 968 Cabrio - first registered on 30 July 1993 - in her name on 6 April 2000. After the accident, she had the car taken to the specialist workshop "Porsche-Zentrum" W.. The expert B. inspected the vehicle there and estimated the repair costs at DM 30,683.30 gross. In doing so, he used a wage factor corresponding to the hourly rates of the "Porsche Centre" W.. The plaintiff did not have the vehicle repaired. She sold it on 29 May 2000 at a price of DM 10,200. She settled her damages on the basis of the expert's report at 30,683.30 DM. The defendant only paid DM 25,425.60. It based its calculation of damages on a lower wage factor than the expert on the basis of average hourly rates customary in the locality, which were determined by DEKRA taking into account all representative brand and independent specialist garages in the region.
be. The plaintiff is of the opinion that she is entitled to compensation for the wage costs incurred in the "Porsche Centre" W.. She demands payment of the difference of
5,257.70 DM (€ 2,688.22)

After obtaining a written expert opinion on the replacement value of the vehicle, the district court awarded the claim in its entirety. On appeal by the defendant, the Regional Court amended the judgement and dismissed the action. It allowed the appeal in view of the different assessment of the reimbursability of the repair costs in case of a fictitious settlement in case law and literature in order to further develop the law. The plaintiff continues to pursue her claim with the appeal.

Reasons for decision:

The court of appeal held that a prerequisite for the award of fictitious repair costs was that they "appear economical in a strict sense". The plaintiff did not dispute that a proper repair of the vehicle outside an authorised Porsche workshop would have been possible with the amount settled by the second defendant, nor did it show that a higher reduced value would have remained if the car had been repaired elsewhere than if it had been repaired in an authorised Porsche workshop. The plaintiff had not provided any further details on the "previous life" of the car in terms of maintenance, although it had already been almost 7 years old at the time of the accident. Therefore, the plaintiff had to be referred to the economically more favourable way of a repair in another specialised workshop - which did not necessarily have to be a so-called independent workshop. This was all the more true as the injured party who sold his vehicle unrepaired, waiving repair in a bonded brand workshop, usually expressed his expectation with this behaviour that repair in a contract workshop was not worthwhile on balance because the market did not ultimately reward such an expensive repair accordingly. It should not be overlooked that a sale without repair could also have other reasons, namely a lack of financial means. However, such reasons were not apparent in the case in question.

The appeal judgement does not stand up to scrutiny by the appellate court.

(1) It is true that the court of appeal, in accordance with supreme court case law and the predominant legal opinion, in principle considers a claim by the injured party for reimbursement of the repair costs incurred in a brand-affiliated authorised workshop to exist irrespective of whether the injured party actually has the car fully repaired, has it repaired to an inferior standard or does not have it repaired at all (constant case law of the recognising senate, cf. Senate judgements, BGHZ 66, 239, 241; of 6 November 1973 - VI ZR 163/72 - VersR 1974, 331; of 22 November 1977 - VI ZR 119/76 - VersR 1978, 235; of 5 March 1985 - VI ZR 204/83 - VersR 1985, 593; of 20 June 1989 - VI ZR 334/76 - VersR 1978, 235. June 1989 - VI ZR 334/88 - VersR 1989, 1056; of 17 March 1992 - VI ZR 226/91 - VersR 1992, 710 and of today, 29 April 2003 - VI ZR 393/02 -; cf. on this also Steffen, NZV 1991, 1, 2; ders. NJW 1995, 2057, 2062; id. DAR 1997, 297). Therefore, it correctly affirmed on the merits a claim by the plaintiff for reimbursement of the objectively necessary repair costs pursuant to § 249.2 sentence 1 BGB (§ 249 sentence 2 BGB old version), although the vehicle had not been repaired. This is because according to the cost comparison between repair costs and the costs for the procurement of a replacement, which must be carried out on the basis of the economic efficiency requirement in § 249.2 sentence 1 BGB when calculating fictitious repair costs (cf. senate judgements of 5 March 1985 - VI ZR 204/83 - loc.cit. and BGHZ 115, 364, 373), the repair costs claimed by the plaintiff are still economic. Admittedly, if the residual value of DM 14,400 claimed by the defendants is deducted from the replacement value of the accident vehicle of DM 45,000 assumed on the basis of the expert opinion of the court-appointed expert L., the replacement cost of DM 30,600 is DM 83.30 less than the repair cost. However, taking into account that the plaintiff had actually only received DM 10,200 as the purchase price for the vehicle and that there was therefore a considerably lower residual value than that claimed by the defendants, the court of appeal, in agreement with the trial judge and on the basis of the discretion granted to the judge of the facts under § 287 ZPO when determining the amount of the damage, correctly assumed that the
The plaintiff's billing still complies with the principle of economic efficiency according to § 249 Para. 2 Sentence 1 BGB.

2 The court of appeal also correctly assumes this. With regard to a limitation of the amount of damage, however, it disregards the fact that the aim of compensation is total repair and that the injured party is free, according to the principles of damage law, both in the choice of means to repair the damage and in the use of the compensation to be paid by the damaging party (cf. senate judgements of 20 June 1989 - VI ZR 334/88 - VersR 1989, 1056 f. as well as of today - VI ZR 393/02 - with further references). In principle, this also applies to fictitious repair costs.

a) Admittedly, from the point of view of the duty to minimise damage, the injured party is obliged to choose the more economic way of remedying the damage within the bounds of what is reasonable for him, provided that he can influence the amount of the costs to be spent on remedying the damage (cf. senate judgements BGHZ 115, 364, 368 f.; 115, 375, 378; 132, 373, 376). However, it is generally sufficient that he calculates the damage on the basis of an expert opinion obtained by him, provided that the expert opinion is sufficiently detailed and shows the effort to do justice to the concrete case of damage from the point of view of an economically thinking observer (cf. Senate decisions of 20 June 1972 - VI ZR 61/71 - VersR 1972, 1024, 1025; of 20 June 1989 - VI ZR 334/88 - VersR 1989, 1056; of 21 January 1992 - VI ZR 142/91 - VersR 1992, 457, 458; on the risk of prognosis in general see Senate decisions BGHZ 63, 182, 185 f; 115, 364, 370). In striving for an economically reasonable objectification of the need for restitution within the framework of § 249.2 sentence 1 BGB, the basic concern of this provision must not be lost sight of, namely that the injured party should receive the fullest possible compensation for damages in the event of the full liability of the tortfeasor (cf. senate judgement BGHZ 132, 373, 376; Steffen, NZV 1991, 1, 3; id. NJW 1995, 2057, 2062). Therefore, when examining whether the effort to repair the damage is within reasonable limits, a subject-related consideration of the damage must be made, i.e. consideration must be given to the special situation of the injured party, in particular to his individual possibilities of knowledge and influence as well as to the difficulties that may exist for him in particular (cf. senate judgements, BGHZ 115, 364, 369; 115, 375, 378; 132, 373, 376 f.).

b) The considerations of the court of appeal are not compatible with these principles.

aa) Admittedly, the Court of Appeal can be supported in its approach that the injured party who can easily find a readily accessible
has a cheaper and equivalent repair option, must allow himself to be referred to this repair option. However, the Court of Appeal did not examine the factual prerequisites
for this were not established. According to the factual findings in the appeal judgement, the defendants did not dispute that the hourly rates set by the expert were actually incurred in the case of a repair in an authorised Porsche workshop, nor did they complain about serious deficiencies in the expert's report. Under these circumstances, the plaintiff does not have to allow itself to be referred to the abstract possibility of technically correct repair in any less expensive third-party workshop, even from the point of view of the duty to minimise damage. The basis for the calculation of the repair costs required in the concrete case of damage cannot be the abstract average of the hourly rates of all representative brand and independent specialist workshops in a region if the injured party settles fictitious repair costs. This opinion held by the court of appeal in agreement with some courts of instance (OLG Hamm, DAR 1996, 400; LG Berlin, Schaden-Praxis 2002, 390; AG Gießen, ZfSch 1998, 51; AG Wetzlar, Schaden-Praxis 2002, 391) cannot be followed. On the one hand, this is contradicted by the fact that the tortfeasor is obliged to fully repair the damage irrespective of the economic dispositions of the injured party; on the other hand, a different view would restrict the possibility of the injured party to repair the damage on his own initiative, as provided for in § 249 para. 2 sentence 1 BGB. In addition, the realisation of a repair at the prices submitted by the defendants would require the injured party to develop considerable initiative of his own, which he is not obliged to do (comparable in this respect to the settlement of rental car costs the senate judgements BGHZ 132, 373, 378 and to the determination of the residual value in the case of payment in lieu of the vehicle BGHZ 143, 189,
194). As a rule, it would be necessary to make enquiries regarding the workshop experience for the repair of the respective vehicle make and to obtain corresponding price quotations. In the case in dispute, the plaintiff was therefore entitled to base the calculation of the damage on the hourly rates of the "Porsche Centre" W. as the brand-affiliated specialist workshop in its vicinity, even if its hourly rates were higher than the wage rates for the region determined by DEKRA. It must also be taken into account that the average value calculated by DEKRA as a statistically determined figure clearly does not represent the amount required for the repair.

bb) The reduction of the hourly rates cannot be justified by the further reasoning of the Court of Appeal either, that the plaintiff had
The plaintiff did not show that it would be left with a (higher) reduced value in the case of a repair outside an authorised Porsche workshop than in the case of a repair in such a workshop. The plaintiff is neither obliged to make special statements in this respect due to the fact that the vehicle was already seven years old, nor is she obliged to present the "previous life" of the car in terms of maintenance. If the way chosen by the injured party to repair the damage complies with the requirement of economic efficiency according to § 249 para. 2 sentence 1 BGB, the age of the vehicle alone does not justify any further burden of proof on the part of the injured party, if the necessary repair expenditure is proven by an expert opinion. For the comparable problem in the assessment of the residual value of a vehicle in the settlement of damages, the recognising senate pointed out in the judgement of 30 November 1999 (BGHZ 143, 189, 194 with further references) that the tortfeasor has the burden of proof for the actual conditions of an exception which justifies the determination of the necessary costs for the repair of the damage deviating from the expert's report. Accordingly, if the injured party settles the costs of repair as damage and proves the necessity of the funds by means of the repair cost calculation or by means of a proper expert opinion, the injuring party has to state and prove the concrete facts from which the inefficiency of the settlement and thus a violation of the duty to minimise damage results.

cc) The appeal rightly complains that the court of appeal does not consider the costs claimed by the plaintiff for the repair of the damage to be necessary because the plaintiff resold the vehicle unrepaired. In this way, too, the court of appeal interfered with the plaintiff's freedom of disposition with regard to the use of the compensation, which exists according to the principles of damage law. The concrete behaviour of the injured party does not influence the amount of damages as long as the calculation of damages respects the principle of economic efficiency and the prohibition of enrichment. Within this framework, the injured party is in principle free with regard to the use of the amount of money received to compensate the damage (cf. senate judgements of 20 June 1989 - VI ZR 334/88 - VersR 1989, 1056 f. with further references and of today - VI ZR 393/02 -; Weber, VersR 1990, 934, 938 ff; Steffen, NZV 1991, 1, 2; ders. NJW 1995, 2057, 2059 f.).

dd) For this reason, the appeal is also justified in complaining that the court of appeal did not attach any importance to the plaintiff's factual submission that it would have been unreasonable to have the car repaired in another workshop in view of the extent of the damage and the possibility of an extension of the damage.
The further consideration of the court of appeal that an injured party expresses with the resale of the unrepaired vehicle that the repair in an authorised workshop is no longer worthwhile or is not rewarded by the market is also not sustainable. This is already inconsistent with the principles of damage law outlined above and, moreover, is not covered by factual findings in the case in dispute.

The appeal judgement is based on the misjudgement of the aforementioned principles of damage law. It was therefore to be set aside. The senate decides on the matter itself, as all necessary factual findings have been made (§ 563 para. 3 ZPO).

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