Brandenburg Higher Regional Court
6 U 120/07
The plaintiff's appeal against the judgment of the 11th Civil Chamber of the Potsdam Regional Court (Case No. 11 O 54/07) pronounced on 9 August 2007 is dismissed.
Order the plaintiff to pay the costs of the appeal proceedings.
The judgment is provisionally enforceable.
The plaintiff asserts claims for damages in connection with the purchase of a classic car.
The plaintiff intended to buy a vintage BMW 502 from the first defendant. The first defendant had offered the car for sale on the internet at "mobile.de" for €15,900. The description stated inter alia:
"One of the few good Super V8s. Condition 3, upholstery new, new brake Atege, galvanised sill trims need re-chroming."
In the run-up, the plaintiff wanted to make sure that the purchase price requested by the first defendant corresponded to the value of the vintage vehicle and therefore requested the preparation of a specialist appraisal. The first defendant agreed to this and commissioned D. GmbH, B. branch, to draw up a valuation report. The expert opinion was drawn up by the 2nd defendant on 19.12.2003. It shows a net replacement value of 14,500 Euros and contains an assessment of the condition of individual vehicle parts. With regard to the details, reference is made to the copy of the expert opinion on file.
The plaintiff and the first defendant then concluded a handwritten purchase contract for the BMW on 21 December 2003 at a price of 15,950 Euros. This contract did not contain any further details. The vehicle was handed over to the plaintiff on the same day.
By fax dated 29.12.2003, the first defendant then sent a typewritten contract of sale dated 21.12.2003, which contained the following sentence at the end: "The seller sells the vehicle without any warranty as seen and test-driven. The plaintiff also signed this contract.
In a letter dated 24 May 2005, the plaintiff contacted D. GmbH in B.. It states, among other things:
"Because of the extremely positive evaluation by your company, I then purchased the car in good faith in your expertise on 21.12.03, with the usual exclusion of any warranty from the previous owner. During an inspection appointment in a master car workshop, a completely different vehicle condition presented itself. It will probably cost 5,500 euros just to put the frame in a TÜV-compliant condition...". He asked for a statement and possible assumption of costs.
The plaintiff reiterated this request in a letter dated 27 May 2005. This letter states inter alia: "In the case of a positive result, I promised Mr. S. both the purchase of the vehicle and the payment of the expert's invoice, because I also had an interest in an up-to-date expert's report for later.
The defendants raised the defence of limitation at trial.
The plaintiff submitted at first instance:
In November 2004, after having driven only 2,000 km, he had noticed during a visit to the workshop that the condition of the car was worse than described in the expert opinion. Between the purchase and the visit to the workshop, the car had always been parked in a well-ventilated and dry garage. At the beginning of 2005, a specialist workshop had found considerable deviations from the expert opinion in 13 points. In particular, the frame of the vehicle was completely dilapidated and could not have been inspected during a general inspection. There had been massive rust problems on the floor assembly, which could have been detected by a little scratching. It was impossible that this condition of the floor assembly could have been overlooked during the inspection.
The plaintiff had then brought the vehicle into the condition owed by the first defendant at a price of 15,155.40 euros.
The first defendant was liable under the warranty. The classic car did not have the agreed condition, namely an overall condition of "good 3". By presenting the expert opinion, the first defendant had given a guarantee for the condition, so that the exclusion of warranty did not apply. In addition, the first defendant had fraudulently concealed the defects and had colluded with the second defendant. For this reason, it was not necessary to set a grace period. In addition, the first defendant was also liable in tort.
The second defendant was liable by way of expert liability according to § 311 paragraph 3 BGB. He had already claimed special personal trust due to his position as an expert. In addition, the second defendant was also liable in tort.
The statute of limitations only begins to run from the time of knowledge of the damage and the damaging party. In this case, this had been the case in November 2004 at the earliest.
The plaintiff has requested,
order the defendants to pay to the applicant, jointly and severally, the sum of EUR 15 155,40 together with interest at the rate of five percentage points above the base rate from 17 March 2007.
The defendants have requested,
dismiss the action.
The first defendant has submitted:
Warranty claims had become statute-barred at the end of 21.12.2005 and had also been effectively excluded by contract. No guarantee had been given.
The allegation of fraudulent intent was a statement in the dark. The first defendant had no knowledge of the alleged and disputed defects.
The vehicle was in the condition described in the expert report.
In addition, the plaintiff's claim was also excluded because the first defendant had not been given a deadline for subsequent performance - which was undisputed in this respect.
There was no liability in tort. There was not the slightest indication of a deceptive act.
Moreover, the invoice submitted indicated that far more had been repaired than was necessary to achieve the agreed quality.
The second defendant has submitted:
The action was inadmissible insofar as it was not based on claims in tort.
The findings in the expert opinion on the condition and value of the vehicle were correct.
If a worse condition was found after the purchase, this was due to the natural ageing of the vehicle. For the maintenance of a classic car such as this one, 5,000 euros were to be spent annually.
If the vehicle had been in the same condition at the time of the appraisal as it is now due to the repair, the replacement value would have been much higher.
The claim in tort had become time-barred at the end of 31 December 2006.
The district court dismissed the action. It essentially stated:
Contractual claims against the first defendant did not exist because the warranty had been effectively excluded. There was no evidence of malice or collusion. There was also no declaration of guarantee. There were also no indications of tortious liability on the part of the 1st defendant. Nor was it shown that the value of the vehicle did not correspond to the agreed purchase price and that the plaintiff had therefore suffered damage.
With regard to the second defendant, only claims in tort were to be examined due to § 32 ZPO. These were not present. The alleged defect in the expert opinion did not constitute an act of deception. Here, too, the amount of the damage had not been explained.
The plaintiff appealed against the judgment, which was served on him on 14 August 2007, in a written statement dated 5 September 2007 (received by the court on 6 September 2007), in which he continued to pursue his application at first instance.
The plaintiff adds:
If an advertisement already constituted a guarantee, the submission of an expert opinion had to embody such a guarantee all the more. It was unrealistic to assume that an expert opinion was only obtained for information purposes. Rather, such an expert opinion was regularly obtained in order to be able to hold the seller to the information contained therein.
Moreover, the exclusion of warranty had clearly been added in order to gain unilateral legal advantages.
Collusion was obvious in view of the dramatic deviations between the actual condition and the expert opinion. This was also supported by the proximity of the defendants to each other, as both came from the B./Br. area. It was also the first defendant who had brought the second defendant into play as an expert.
The first defendant - like every seller - was obliged to provide complete and truthful information if he had positive knowledge of the defect. To date, the first defendant has failed to provide complete information. The duty to provide information also resulted from the internet advertisement.
The first defendant was a fan of these BMW vehicles, a proven fox and expert who had had the vehicle in his care for years. He must therefore have known that the vehicle was in a dilapidated condition; this was also shown by the internet advertisement. The subsequent insertion of the exclusion of warranty was also an indication of knowledge.
Since the plaintiff had considered himself to have been cheated brazenly, it had been unreasonable for him to set a deadline for the first defendant.
With regard to the second defendant, there was no discussion of expert liability.
Insofar as the Regional Court complained about a lack of explanation of the damage, the obligation to provide information pursuant to § 139 of the Code of Civil Procedure had been violated. In addition, the first instance submission contained everything that was necessary to establish that the value of the vehicle did not correspond to the value of the expert opinion.
It was incomprehensible that the witness W. had not been questioned.
The plaintiff requests,
order the defendants, amending the judgment under appeal, to pay to the applicant, jointly and severally, the sum of EUR 15 155,40, together with interest at the rate of five percentage points above the base rate from 17 March 2007.
The defendants request,
dismiss the appeal.
The defendants defend the first instance judgment.
Respondent 1) supplements his submission as follows:
According to the case law of the highest courts, there was no guarantee of quality. There were no indications of fraudulent concealment.
The plaintiff had failed to provide more detailed information on the amount of damages in the grounds of appeal.
The reason for the expert opinion had been his advice that the plaintiff needed an expert opinion if he wanted to insure the vehicle afterwards.
The second defendant makes a supplementary submission:
The action, insofar as it was based on contract, was inadmissible, but also inconclusive, as there had been no contract with the second defendant.
The court issued extensive instructions in its order of 4 June 2008. Reference is made to these in addition.
The plaintiff's appeal, which is admissible pursuant to sections 517 and 520 of the Code of Civil Procedure and, in particular, was filed and substantiated in due form and time, is unsuccessful. The Regional Court was right to dismiss the action.
The plaintiff has no contractual warranty claim against the 1st defendant. A claim based on a warranty promise is not given due to the lack of such a promise (see 1.). A claim for damages due to the lack of an agreed quality fails in any case due to the required grace period (see 2.). Furthermore, such a claim would also be time-barred due to the lack of fraudulent intent (see 3.).
Whether the warranty rights were effectively excluded or whether they remained in existence due to the existence of an agreement on quality (cf. on the coexistence of agreement on quality and exclusion of warranty BGH v. 29.11.2006, NJW 2007, 1346) and whether the alleged defect existed at all can therefore be left open.
(1) The plaintiff is not entitled to claims from a warranty promise pursuant to § 443 of the German Civil Code (BGB) against the first defendant, since the plaintiff has not given any warranty with regard to the condition of the frame or the overall condition of the vehicle. The Regional Court also correctly denied such a guarantee. The assumption of a guarantee - like the assurance in former times - requires that the seller guarantees the existence of the agreed quality of the object of purchase in a contractually binding manner and thus indicates his willingness to accept liability for all consequences of the absence of this quality (BGH v. 29.11.06, NJW 2007, 1346). The obligation to indemnify then also extends to defects for which the seller is not at fault. In view of these far-reaching consequences, caution is required in particular when assuming a tacit acceptance of such a liability (BGH loc.cit.). Whether such an obligation exists is to be determined by interpretation, taking into account the typically existing interests. In a sale between private persons, as is the case here, the buyer's interest in binding declarations is equally weighted against the seller's interest in not having to be responsible for more than what he is able to judge according to his lay knowledge (BGH loc. cit.). For example, when stating the mileage, the buyer cannot assume without further ado that the seller, as a layman, necessarily wants to vouch for the correctness of this information, even if the seller did not express this. This would require special circumstances. These are also not given in the present case. A special circumstance could only be the obtaining and handing over of the valuation report. However, for three reasons it cannot be assumed that the seller's will to an unconditional obligation to indemnify should lie in this:
a) If a seller advertises a vehicle with a valuation report, this should express that he adopts the report as his own and also wants to vouch for its accuracy. In this case, however, the expert opinion was obtained at the buyer's request, i.e. with a different objective: the buyer wanted to protect himself, the expert opinion was primarily in his interest; the plaintiff even paid for it himself in the end, as he confirmed at the oral hearing. However, if an expert opinion is obtained at the request of the buyer, it cannot be concluded that the seller intended to provide a guarantee.
b) Furthermore, the purpose of the expert opinion was to determine the value and not a binding description of the condition. To read into the handing over of such an expert opinion a guarantee with regard to a certain condition would be going too far.
c) Finally, the private seller cannot check the accuracy of the expert opinion. In this case, however, the buyer cannot assume without further ado that the seller intends to vouch for the accuracy of an expert opinion without any fault on his part. This would require additional declarations or at least a correspondingly clear reference in the contract document. This is lacking.
Warranty claims for damages under §§ 433, 434, 437, 440, 280, 281 of the German Civil Code (BGB) already fail because the deadline for subsequent performance required under § 281 para. 1 sentence 1 of the German Civil Code (BGB) was indisputably not set. Contrary to the plaintiff's view, this deadline was not dispensable. For this reason, it can remain undecided to what extent a quality agreement in the sense of § 434 para. 1 sentence 1 BGB was made at all with regard to the overall condition assessment or at least with regard to the condition of the vehicle frame (cf. in particular OLG Cologne of 18 December 1996, NZV 1998, 73) and whether this defect actually existed. Contrary to the plaintiff's view, it was therefore not necessary to take evidence on this, as the claim already fails on legal grounds. For the sake of completeness, it should be noted that the assessment of the overall condition with the grade 3 or "good 3" is not relevant, as the plaintiff did not substantiate a defect in this respect: Neither does such an overall mark result from the expert opinion submitted, nor has the plaintiff submitted which mark the overall condition would have deserved in his opinion (or in the opinion of the specialist workshop consulted by him), i.e. to what extent a deviation justifying a defect exists in this point. The fact that the expert opinion was flawed in 18 points was not sufficient to draw the conclusion that there was a specific deviating overall mark. Accordingly - as the Regional Court also believes - at most with regard to the assessment of the vehicle frame there is a sufficient submission on the condition, on the assessment of the condition and thus on the alleged defect. In this regard, the plaintiff submitted, in particular by submitting the handwritten expert opinion, that the frame only deserved the grade 5 (and not - as assessed by the second defendant - the grade 4). Whether an agreement on quality could be assumed on this point can - as stated - be left open.
a) It is true that a previous deception can make the setting of a time limit unnecessary (BGH v. 8.12.2006, NJW 2007, 835). However, this would require that the fraudulent misrepresentation was established. This is not the case here.
In principle, fraudulent intent requires that the seller knows about the defect or at least considers it possible and at the same time knows or expects and accepts that the buyer does not know about the defect and would not have concluded the contract or would not have concluded the contract with the agreed content if the defect had been disclosed (knowledge element, BGH v. 7.3.2003; NJW-RR 2003, 989). Conditional intent is therefore required; gross negligence is not sufficient. A phrase to the effect that the seller deliberately concealed knowledge is equally insufficient (BGH loc. cit.). The buyer must prove the circumstances justifying fraudulent intent.
aa) It is sufficient if the buyer asserts the seller's knowledge of the defect and bases his fraudulent intent on this, provided that this assertion is not an abusive statement in the dark (cf. on the extent of substantiation BGH NJW 1996, 1826). In the present case, however, the knowledge incidentally alleged by the plaintiff at first instance was sufficiently contested by the first defendant. The plaintiff, who is burdened to prove this, did not provide admissible evidence of knowledge. The fact that the plaintiff felt "brazenly deceived" is not sufficient for the dispensability of setting a deadline. In this respect, it is not the purely subjective view of the buyer that matters, but the buyer - if he assumes fraudulent intent and therefore refrains from setting a deadline - bears the risk for the correctness of his assumption. In addition, the plaintiff alleges fraudulent misrepresentation through collusive cooperation between the seller and the expert ("courtesy appraisal"). The fact that the defendants both come from the B./Br. area cannot be considered as a serious argument for fraudulent intent. An imputation of the alleged knowledge of the expert is out of the question, since he did not act as the seller's representative (§ 166 BGB) and is also not to be regarded as a representative of knowledge (cf. BGH v. 7.3.2003 loc.cit.). Even if one were to assume that the expert opinion of the second defendant was wrong, it cannot be concluded from this that there was collusive cooperation in the form of a favourable expert opinion. An incorrect expert opinion can also be based on pure negligence. There are no other indications that would necessarily lead to the conclusion that the first defendant was aware of the alleged actual condition of the vehicle frame and would be able to justify a corresponding conviction on the part of the court. Neither the fact that the exclusion of warranty was documented after the conclusion of the contract, nor the information in the internet advertisement, individually or collectively, necessarily allow this conclusion.
bb) Furthermore, it would be sufficient if the buyer presented circumstances from which the violation of a duty to investigate on the part of the seller and, derived from this, a "statement in the dark" results (cf. Reinking/Eggert, Der Autokauf, 9th ed., marginal no. 1623). However, such a duty to investigate did not exist here.
Even the commercial used car dealer does not have a general duty to inspect. Rather, such a duty must be derived from concrete (BGH NJW 1983, 217) or tangible (BGH NJW 1981, 928) or special (Brandenburg Higher Regional Court, judgement of 8 December 2006, ref. 7 U 74/06, published in juris) circumstances. The obligation to inspect is justified by the consideration that the professionally trained seller is more likely to notice concrete signs of defects than the buyer and that he thus has a much better overview of the purchase risks (BGH NJW 1981, 928). In certain cases it is reasonable for the seller to inspect the vehicle for defects or modifications to the extent that they are easily recognisable to him as a specialist, i.e. without special technical effort (BGH NJW 1983,217). The necessary tangible evidence to justify an obligation to inspect must be presented by the buyer (BGH NJW 1981,928; Reinking/Eggert, Der Autokauf, 9th edition, marginal no. 1657). These principles cannot be applied to the private individual. In principle, the private seller is not subject to such a duty of inspection (cf. Reinking/Eggert marginal no. 1543). Insofar as the plaintiff has now submitted that the first defendant is a "fan, proven fox and expert", this does not help, as this does not make him a commercial trader with the superior knowledge of a commercial trader, and even as a "fan" he does not have the possibilities and knowledge of a commercial trader without further ado. In principle, the pursuit of a hobby is not sufficient to justify special duties of investigation in favour of the buyer. In addition, it must also be taken into account here that it is about the (alleged) knowledge of the difference between a frame with light to medium rusting and through-rusting ("acceptable condition", grade 4) and one with heavy rusting and through-rusting ("defective", grade 5), i.e. a gradual difference, which moreover flows into a professional assessment. Even if the first defendant knew about rusting through, this would not mean that he knew about an allegedly defective condition of the frame in the sense of this evaluation scheme.
cc) As far as the plaintiff makes statements in the written statement of 6.6.08 regarding the duty of disclosure and the concealment, this is not even relevant, because the duty of disclosure and the concealment only take effect when the seller had positive knowledge of the circumstance that had to be disclosed. As explained, this is not the case. The fact that the first defendant did not point out the (alleged) defect is, moreover, completely undisputed, but also irrelevant.
b) Other reasons for the dispensability of setting a time limit are not apparent. In particular, there is no serious and final refusal to perform. Strict requirements are to be placed on the existence of this precondition; it is only to be affirmed if the debtor clearly expresses that he will not fulfil his contractual obligations, so that setting a deadline would be a mere fumbling (BGH 21.12.2005 loc.cit.). Such a refusal of performance had not been submitted so far, rather the plaintiff had based the dispensability of setting a time limit mainly on the fraudulent conduct. The refusal to perform could at most result from the denial during the proceedings. However, this cannot be assumed if this denial takes place after the defect has been remedied, as in this case no sufficient conclusions can be drawn about the conduct before the defect was remedied. In any case, during the trial the first defendant was no longer obliged to remedy the defect, as this had become impossible due to the plaintiff's self-remedy, and therefore he could no longer refuse to remedy the defect (see BGH 21.12.2005, MDR 2006, 677; BGH NJW 2005, 1348). Contrary to the plaintiff's view, it is not a question of whether setting a time limit still makes sense in the course of the proceedings, since in the present case - i.e. if the buyer has already repaired the goods himself - setting a time limit can no longer be made up for. Rather, it is about the question of a safe conclusion as to whether setting a deadline before the repair and thus pre-trial - which indisputably did not take place - would have been exceptionally dispensable. The supplementary performance was also not dispensable due to initial impossibility. In the case of the purchase of a used vehicle, it is true that impossibility with regard to subsequent performance often exists as a piece purchase, because the buyer, for example, simply cannot be provided with the sold car as "accident-free" (cf. BGH v. 7.6.2006; ZIP 2006, 1586). In this case, however, it is not a question of a replacement delivery, but the owed condition ("acceptable" with regard to the frame) can be produced by refurbishing or reworking the classic car, as is also shown by the repair carried out and the claim asserted by the plaintiff.
Even if the plaintiff's claim for damages due to the alleged non-existence of an agreed quality were to be affirmed on the merits and in terms of amount (which would not be possible without taking evidence on the question of the defective vehicle frame), the action would not be successful because the first defendant was right to raise the defence of limitation. Pursuant to § 438 para. 1 no. 3 BGB, the limitation period is two years and begins with delivery. The exceptional case of regular limitation due to fraudulent intent pursuant to § 438 para. 3 sentence 1 BGB does not apply, as the plaintiff has not been able to prove the alleged fraudulent intent. In this respect, reference can be made to the above remarks on the dispensability of setting a time limit. The limitation period thus expired at the end of 2005. The action was not brought until 2007. The warranty claims are therefore time-barred.
The plaintiff also has no tort claims against the first defendant under §§ 823 para. 2 BGB, 263 StGB. In this respect, the Regional Court correctly denied claims on the grounds that there were no indications of deception or fraud on the part of the first defendant. The alleged "dramatic deviation" between the expert opinion and the actual condition alone is not sufficient for this. The same applies here as stated above with regard to fraudulent intent. Moreover, mere suspicions expressed by the plaintiff are not sufficient for a conviction, but an act of fraud by the first defendant must be established to the conviction of the court. This is not the case.
The plaintiff is also not entitled to claim damages against the second defendant.
a) In principle, however, contrary to the view of the Regional Court and the second defendant, contractual claims are also to be examined in the local court. § Section 32 of the Code of Civil Procedure does not prevent such a decision, because the court that has jurisdiction pursuant to section 32 of the Code of Civil Procedure must also examine all other bases for claims that could justify the asserted claim for payment on the basis of the facts of life (Federal Court of Justice of 10 December 2002, NJW 2003, 828; Zöller-Vollkommer, 26th edition, section 32 of the Code of Civil Procedure, marginal no. 20 with further references and section 12, marginal no. 20).
However, contractual claims against the second defendant are already ruled out because there is no contractual relationship whatsoever with the second defendant.
However, the fact that the plaintiff did not commission the expert opinion himself would not be detrimental, as it is possible that he was included in the scope of protection of the expert's order and could therefore directly derive rights from it due to defective preparation of the expert opinion pursuant to §§ 633, 634, 280, 281 BGB (cf. only BGH v. 20.04.2004, IBR 2004,633, cited in juris).
However, this liability does not extend further than the actual contractual relationship; in particular, the liability is only directed against the contractual partner. However, it is undisputed that the contractual partner of the expert opinion order was not the second defendant, but D. GmbH. The plaintiff would therefore have to direct contractual claims for defective expert opinions against D. and not against the 2nd defendant employed there.) Pre-trial, the plaintiff also behaved accordingly (correctly) and addressed his letters to D. GmbH and not to the second defendant. Then, however, he brought the action against the second defendant. The plaintiff's view expressed in the lawsuit that the 2nd defendant was personally liable due to the use of special personal trust (§§ 311 para. 3, 280 BGB) cannot be followed. As a rule, the employee of a commercial business cannot be held personally liable for the violation of contractual obligations. Such liability could only be considered if the employee provides an additional guarantee that is of personal importance for the decision of the other party. However, it is not sufficient for an employee to have the necessary and expected expertise for his activity and possibly even to point it out. For in this way the employee does not inspire any further confidence than that his principal - which the business partner can expect in any case - employs a knowledgeable representative (BGH v. 4.7.1983, NJW 1983, 2696). If one were to judge this differently, this would lead to an extension of the representatives' own liability in the entire commercial area, which would no longer be justifiable because of the financial risk involved.
This is the case here: the expertise of the second defendant employed by D. was self-evident and inherent in his activity and does not justify any special trust triggering his own liability (cf. Palandt-Grüneberg, 67.A., § 311 BGB marginal no. 62 with further references).
b) There are also no claims in tort against the second defendant. The Potsdam Regional Court, with appropriate considerations, to which reference is made in addition, denied these both on the merits and in terms of amount. The preparation of a defective expert opinion alone cannot be construed as an intentional tortious act in the sense of fraud (§ 263 StGB, § 823 II BGB), nor can it be construed as a reckless, conditionally intentional and unconscionable act (§ 826 BGB, cf. BGH v. 20.4.2004 loc.cit.). In particular, the plaintiff lacks any explanation of the amount of damage. For in the case of a defective or immorally (§ 826 BGB) incorrect valuation, the valuer is only liable for the fact that the object of the valuation actually has the value stated by him (BGH v. 20.4.2004 loc.cit.). Thus, however, the plaintiff's damage could at most lie in the difference in value between the actual value and the value claimed by the expert. The plaintiff did not provide information on the actual value either in the first instance or - despite the statements of the Regional Court in the judgement and despite the advice of the Senate - in the second instance. In the statement of claim, the plaintiff merely stated that he was to be compensated for the interest in performance "insofar as the contract with the first defendant would have been concluded on more favourable terms, namely terms corresponding to the value, without the second defendant's breach of duty". There is no indication of the value and thus no conclusive statement of the (differential) damage.
The decision on costs is based on § 97 (1) ZPO, the decision on provisional enforceability on §§ 708 no. 10, 711, 713 ZPO.
The appeal was not admissible, as the necessary requirements for this were not met, § 543 ZPO. Neither is the case of fundamental importance nor does the further development of the law or the safeguarding of a uniform case law require a decision by the appellate court.
The amount in dispute is to be set at €15,155.40.