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Proclaimed on:
23 November 2004
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BGB §§ 249 Hd, 251; ZPO § 287
On the assessment of the compensation for loss of use and the reduced market value of an older motor vehicle.

BGH, Judgment of 23 November 2004 - VI ZR 357/03 - LG Kiel
AG Rendsburg

At the hearing on 23 November 2004, the VI Civil Senate of the Federal Court of Justice (Bundesgerichtshof) decided by the Presiding Judge Dr. Müller, the Judge
Wellner, Ms Diederichsen, Mr Stöhr and Mr Zoll, Judges.

found to be right:
The plaintiff's appeal against the judgment of the 8th Civil Chamber of the Regional Court of Kiel of 6 November 2003 is dismissed at its cost.
By law


The plaintiff is claiming residual damages against the 1st defendant as motor vehicle insurer and the 2nd defendant as driver of the opposing vehicle.
from a traffic accident on 25 May 2002. The plaintiff's car, a Mercedes Benz 200 D, which was 16 years old at the time of the accident, was damaged.
with a mileage of approx. 164,000 km, was damaged. The full liability of the defendant is not in dispute on the merits. The parties are still in dispute about
the amount of compensation for loss of use and a reduction in the value of the plaintiff's vehicle due to the traffic accident. The defendant
to 1 only paid the plaintiff compensation for 10 days of loss of use for storage costs in the amount of € 25 per day, totalling € 250. The district court rejected the plaintiff's claim for payment of a further € 404.50 for the loss of use and for payment of € 248.68 for a reduced market value.
dismissed. On the plaintiff's appeal, the Regional Court awarded her a further € 90 as compensation for loss of use. With her appeal, the district court
The plaintiff continues to pursue her claim in so far as it was not granted by the Court of Appeal.

Reasons for decision:
The court of appeal stated that the plaintiff's claim for compensation for loss of use of her vehicle, which, according to the expert's assessment, was in a good state of maintenance at the time of the accident, was not limited to compensation for the costs of storage despite its age and mileage, but was based on the Sanden/Danner/Küppersbusch tables. However, it had to be taken into account that the calculation of the use values of the vehicle groups listed there was based on rental rates for new vehicles, which offered their user the advantage of higher safety and lower fuel consumption. Therefore, in accordance with § 287 of the Code of Civil Procedure, a downgrading of the table by two groups was justified, as a result of which the compensation for loss of use for the plaintiff's vehicle was not based on group E, but on group C with a daily rate of € 34. After deducting the € 250 already paid, the plaintiff was therefore entitled to a further amount of € 9 per day for 10 days of loss of use, i.e. a total of € 90. The plaintiff could not be granted a claim for compensation for a diminished market value in view of the high age, the high mileage and the low replacement value of € 2,100 despite the good condition of her vehicle. It also had to be taken into account that the damage only affected non-supporting parts of the vehicle.
The appeal judgement stands up to review by the appellate court.
(1) Insofar as the appeal argues that the appeal judgment should be set aside because it does not contain the plaintiff's claims, this cannot be accepted. Admittedly, even under the new law, the inclusion of the appellant's motions cannot be waived in principle. However, a literal reproduction is not necessary. It is sufficient that the context of the statements of the court of appeal makes clear what the appellant sought with his appeal (see BGHZ 154, 99, 100 et seq.; 156, 97, 99; Senate judgements of 30 September 2003 - VI ZR 438/2003; BGHZ 154, 99 et seq. September 2003 - VI ZR 438/02 - VersR 2004, 259, 260; and of 10 February 2004 - VI ZR 94/03 - VersR 2004, 881, 882 with further references; BGH, judgement of 13 January 2004 - XI ZR 5/03 - NJW-RR 2004, 573, 574 with further references). The plaintiff's claim in the appeal instance can be clearly inferred here from the sentence of the appeal judgment: "With the appeal, the plaintiff continues to pursue its original claim for payment of € 653.18".
(2) Contrary to the appellant's view, the appeal judgment does not show any error of law to the detriment of the plaintiff with regard to the compensation for loss of use awarded.
a) The court of appeal correctly assumed that the owner of a privately used car who loses the possibility to use it due to an intervention is in principle entitled to compensation for his loss of use (cf. senate judgements BGHZ 45, 212 ff.; 56, 214, 215 f.; GSZ BGHZ 98, 212 f.; BGH, judgement of 20 October 1987 - X ZR 49/86 - NJW 1988, 484, 485 f.). The assessment of the amount of the claim is first and foremost a matter for the judge of the facts, who has special discretion under § 287 ZPO. It is not the task of the appellate court to prescribe a specific calculation method to the judge of the facts in a binding manner, especially since individual factors of the special calculation of damages are time-dependent. However, as far as typical cases are concerned, the estimate must be legally examined in the interest of uniform handling to see whether it respects the object of the pecuniary disadvantage to be compensated and does not lead to an unjust enrichment of the injured party or to a disguised compensation of immaterial damage (cf. senate judgement BGHZ 56, 214, 218). The Federal Supreme Court has recognised the tables of Sanden/Danner (now: Sanden/Danner/Küppersbusch) as a suitable method of estimating damages in this sense (cf. senate judgements BGHZ 56, 214, 217, 219 f.; of 3 June 1969 - VI ZR 27/68 - VersR 1969, 828, 830; BGH, judgement of 20 October 1987 - X ZR 49/86 - ibid). The tables are based on average rental rates for passenger cars as a benchmark recognised by the market for assessing the possibility of using a motor vehicle. However, since compensation for loss of use is only intended to compensate for lost advantages of use for the "own economic use planning" (senate judgement BGHZ 56, 214, 215; GSZ BGHZ 98, 212, 225), i.e. it is about compensation and not about the preservation of the interest in integrity, the rental prices must be adjusted for the specific commercial use.
value factors can be reliably adjusted (cf. GSZ BGHZ 98, 212, 214, 225; Senate judgements BGHZ 45, 212, 220 and of 3 June 1969 - VI ZR 27/68 - loc. cit,
829). These requirements are adequately taken into account in the tables of Sanden/Danner/Küppersbusch by reducing the rental prices by the landlord's profit margins and the costs for administration, agency commissions, increased wear and tear and increased insurance premiums not incurred in the case of private use. The amount remaining after this is 35 to 40% of the usual rent and 200 to 400% of the holding costs (cf. Palandt/Heinrichs, BGB, 63rd ed., Preface to § 249 marginal no. 23; Wussow/Karczewski, Unfallhaftpflichtrecht, 15th ed., chap. 41 marginal no. 44; Born, NZV 1993, 1, 5; Küppersbusch, supplement to NJW issue 10/2002). In an earlier decision of 18 May 1971 (BGHZ 56, 214, 221), the senate stated that the compensation for loss of use should only moderately exceed the costs of storage and that a substantial doubling of the costs of storage was too high (cf. also GSZ BGHZ 98, 212, 226). This, however, was based on different factual foundations than can be found today. Whereas in 1975, for example, according to the table of Sanden/Danner, a doubling of the reserve costs was generally just missed (cf. VersR 1975, 972 ff.), the current tables arrive at higher results according to the same calculation model, which is probably essentially due to the stronger increase in rental car prices compared to the reserve costs. This market development may not be disregarded in the assessment of the compensation for loss of use, because the rental car prices can be taken as an indication of the value of the possibility of use (cf. senate judgement of 3 June 1969 - VI ZR 27/68 -
aaO as well as the references in GSZ BGHZ 98, 212, 214 and 225).
b) The question as to how the compensation for loss of use is to be assessed in the case of older passenger cars - as in the case in dispute - is not assessed uniformly.
In some cases, case law and literature reject a blanket downgrading of older vehicles based solely on their age. Either a deduction from the compensation for loss of use for a comparable new vehicle is waived in principle or deductions are only made taking into account the individual case in the presence of special circumstances, for example in the case of significant defects or other significant restrictions of the value of use (cf. OLG Celle, VersR 1973, 281; KG, VersR 1981, 536; OLG Frankfurt, DAR 1983, 165; OLG Stuttgart, VersR 1988, 851; KG, VRS 86, 24, 28 f.; OLG Karlsruhe, VersR 1989, 269, 270; OLG Schleswig, VersR 1993, 1124, 1125; OLG Naumburg, ZfS 1995, 254, 255; OLG Hamm, DAR 2000, 265, 267; LG Bad Kreuznach, NJW-RR 1988, 1303). Frequently, in order to avoid a downgrading, it is also taken into account whether the vehicle is in a good state of preservation (OLG Koblenz, ZfS 1989, 300, 301; OLG Schleswig, VersR 1993, 1124, 1125; LG Berlin, DAR 1998, 354, 355; LG Kiel, NJW-RR 2001, 1606, 1607; Becker-Böhme, Kraftverkehrs-Haftpflicht-Schäden, 22nd edition, D 68; Hillmann, ZfS 2001, 341, 342). These opinions are essentially justified by the fact that even an older motor vehicle in a corresponding state of preservation can have the same benefit for the owner in the context of his own economic lifestyle as a new vehicle. In contrast, another opinion in case law and literature advocates - as do the authors of the table itself (cf. Danner/Küppersbusch, NZV 1989, 11 f.; Küppersbusch, supplement to NJW issue 10/2002, p. 3; DAR 2004, 1 ff.) - a downgrading within the groups of the table, namely by one group for passenger cars older than five years and by a further group for vehicles over 10 years old (cf. OLG Frankfurt, DAR 1985, 58; OLG Schleswig, NJW-RR 1986, 775, 776; OLG Munich, ZfS 1988, 312; OLG Karlsruhe, VersR 1989, 58, 59; ZfS 1993, 304; OLG Hamm, DAR 1994, 24, 26; DAR 1996, 400, 401; OLG Celle, judgement of 26. April 2001 - 14 U 130/00 - insofar not published in OLGR Celle, 2001, 237; LG Koblenz, ZfS 1990, 10; LG Memmingen, VersR 1990, 864, 865; LG Tübingen, DAR 1991, 183, 184; LG Duisburg, SP 1992, 17; LG Berlin, SP 1992, 341; LG Gießen, SP 1997, 471; LG Hannover, DAR 1999, 211; LG Mainz, VersR 2000, 111; Münchener Kommentar zum BGB/Oetker, 4th ed,§ 249 Rdn. 75 with further references; Sanden/Völtz, Sachschadensrecht des Kraftverkehrs, 7th ed., Rdn. 241; Wenker, VersR 2000, 1082, 1083; 111; Wussow/Karczewski, loc.cit., ch. 41 Rdn. 44 with further references as well as the references in Küppersbusch, supplement to NJW-Heft 10/2002, p. 3 and the presentation DAR 2004, 1 ff.). This is justified both by aspects of depreciation and by the fact that the value in use of a correspondingly older vehicle is usually considerably lower than that of a newer vehicle due to the further development of vehicle technology.
c) The Federal Supreme Court has so far only ruled in a decision of the X. c) The Federal Court of Justice has so far only refused to use the Sanden/Danner table as a basis for estimation in a decision of the X Civil Senate of 20 October 1987 - X ZR 49/86 - (NJW 1988, 484) on the problem of assessing compensation for loss of use for an older vehicle retained within the scope of a contract for work and only used an amount approximately in the amount of the - in individual cases appropriately increased - costs of storage. However, the decision was not based on a case comparable to the present one because, in addition to the age of almost 10 years, the decisive factor was that the vehicle was afflicted with numerous significant defects that substantially impaired the value in use. Only the fact that the vehicle type to be assessed there (Fiat 500) was no longer listed in the Sanden and Danner list, but only the more powerful and significantly more comfortable successor model (Fiat 126), was additionally emphasised.
d) If, on the other hand - as in the present case - the age of the passenger car plays a significant role, the judge of fact is not obliged for legal reasons to make an elaborate calculation in each individual case when assessing the loss of use advantages, but may in principle continue to work with the tables recognised in practice within the framework of the discretion granted to him under § 287 ZPO when estimating the damage for reasons of practicability and the uniform handling of typical cases, even if the vehicle is no longer listed in them (cf. also OLG Frankfurt, DAR 1985, 58; Danner/Küppersbusch, NZV 1989, 11, 12). The court of appeal correctly assumes that in these tables the calculation of the values in use is based on rental rates for new vehicles which, due to the development of vehicle technology, offer in part considerable advantages in use compared to predecessor models, such as greater safety (e.g. through airbag, ABS, ESP etc.), lower fuel consumption despite better driving performance and greater (driving) comfort. These changes are reflected in the purchase price and the rental price, which is essentially based on this, which in turn forms the basis of the tables and thus a point of reference for assessing the compensation for loss of use. The authors of the tables also point out that there is no widespread rental market for discontinued models and that such vehicles - if rented out - would have to be offered at a lower price in order to be competitive.
(cf. Danner/Küppersbusch, loc.cit., p. 12). Since the rental prices adjusted for commercial factors do not reflect the valuation of the benefits of use for
reflect the private economic use of a motor vehicle (cf. Senate BGHZ 56, 214, 215; GSZ BGHZ 98, 212, 225), it would regularly lead to
would lead to an unjust enrichment of the injured party or to a disguised compensation for immaterial damage (cf. BGHZ 56, 214, 218), if one wanted to
compensate him for the loss of the benefits of use of his vehicle no longer listed in the tables and no longer manufactured, as if acting
it is a new vehicle.
e) The Court of Appeal's assessment that such changes in the value in use through a downgrading in the respective vehicle groups are
of the tables can be taken into account, nothing is to be recalled for legal reasons. From which age and by how many steps this has to be done, whether alternatively also the last table can be used in which the damaged motor vehicle was still listed (cf. Danner/Küppersbusch, loc.cit., p. 12 with further references), and from which age only the reserve costs are to be assumed, does not have to be decided conclusively here. Under the circumstances of the present case, in which the vehicle to be assessed is older than 15 years and the court of appeal, within the framework of its discretionary power granted to it by § 287 ZPO, not only assumed - as did the district court - that the costs of maintenance would be incurred, but merely downgraded the tables of Sanden/Danner/Küppersbusch by two groups, an error of law to the detriment of the plaintiff is in any case not discernible.

Contrary to the appellant's opinion, the court of appeal did not err in law in denying a reduction in the value of the plaintiff's vehicle as a result of the traffic accident.
a) According to the established case law of the senate, a reduction in market value is a reduction in the sales value that remains despite the complete and proper repair of a motor vehicle that has been substantially damaged in an accident solely because a large part of the public has an aversion to the purchase of accident-damaged motor vehicles that influences the price, above all because of the suspicion of hidden damage. This difference in value constitutes direct material damage (cf. Senate decisions BGHZ 27, 181, 182, 184 f.; 35, 396, 397 f.; of 30 May 1961 - VI ZR 139/60 - VersR 1961, 707, 708; of 2 December 1966 - VI ZR 72/65 - VersR 1967, 183; cf. also BGHZ 82, 338, 343 f.). The court adheres to this case law despite critical voices in the literature (cf. Palandt/Heinrichs, loc.cit., § 251 marginal no. 15; Staudinger/Schiemann, BGB, 13th ed., § 251 marginal no. 37 as well as the references in von Gerlach, DAR 2003, 49, 52 and Huber, Festschrift Rudolf Welser, p. 303, 309 f.). The starting point of this case law, that on the used car market accident vehicles achieve a lower price than accident-free ones (so also Sanden/Völtz, Sachschadensrecht des Kraftverkehrs, 7th ed,
marginal no. 119; Splitter, DAR 2000, 49), because hidden technical defects cannot be ruled out and the risk of greater susceptibility to damage as a result of not
(as already stated in Senate judgements BGHZ 35, 396, 398 and of 30 May 1961 - VI ZR 139/60 - loc.cit.
repair technology, especially as the technical development in vehicle construction also makes higher demands in this respect (cf. Eggert, VersR 2004, 280, 282; von Gerlach, loc.cit., 52 f. with further references; Hörl, ZfS 1999, 46, 47; ders., NZV 2001, 175, 176; Huber, loc.cit., 312 ff., 334).
b) The senate has not yet conclusively decided up to which age of a vehicle or up to which mileage a reduced market value can be awarded. In an older judgement of 3 October 1961 (BGHZ 35, 396, 399), the Senate did not object to the award of a reduced market value for a vehicle with a mileage of over 100,000 km. However, the corresponding findings of the court of appeal there were based on expert advice and did not reveal any legal error. In a later decision of 18 September 1979 - VI ZR 16/79 - (VersR 1980, 46, 47) the senate considered that in general a mileage of 100,000 km could be taken as the upper limit for the compensation of a reduced market value for passenger cars. However, taking into account the conditions on the market for used cars at that time, this assessment was based on the consideration that such cars generally only had such a low commercial value that a measurable diminished value no longer occurred after the damage caused by the accident had been repaired (cf. senate judgement of 18 September 1979 - VI ZR 16/79 - ibid.). The assessment was therefore not based solely on the mileage of the vehicle, but decisively on its significance for its valuation on the used car market. This importance can change over time with the technical development and the increasing longevity of the vehicles (e.g. as a result of longer durability of engines, fully galvanised bodies etc.).
s. A corresponding change in the used car market is reflected in particular in the valuation of used vehicles by appraisal organisations such as Schwacke and DAT, which now go back as far as 12 years in their quotations and explicitly point out that
all market valuations refer to accident-free vehicles (cf. OLG Karlsruhe, ZfS 1986, 366; OLG Düsseldorf, VersR 1988, 1026; LG Tübingen,
ZfS 1983, 264; LG Koblenz, ZfS 1990, 49, 50; LG Oldenburg, ZfS 1990, 50; ZfS 1999, 335, 336; Geigel/Rixecker, Der Haftpflichtprozeß, 24th ed.
marginal no. 64; Palandt/Heinrichs, loc.cit., § 251 marginal no. 14; Sanden/Völtz, loc.cit., marginal no. 125; Wussow/Karczewski, loc.cit., ch. 41 marginal no. 34; Zeisberger/Neugebauer-Püster
formerly Halbgewachs, Der merkantile Minderwert, 13th ed., p. 34 f.; Darkow, DAR 1977, 62, 64; Hörl, ZfS 1999, 46, 47; Notthoff, VersR 1995, 1399, 1403;
Otting, ZfS 1994, 434; Rasche, DAR 2000, 332, 333).
c) The present case does not compel the senate to make a final statement as to the limit up to which, according to today's standards, a reduced market value can be awarded. The court of appeal took into account that the plaintiff's vehicle was in a good state of maintenance, but had a mileage of 164,000 km and was 16 years old, which reduced the replacement value to (only) 2,100 €. In this situation, it is not objectionable from a legal point of view that the court of appeal, within the scope of its discretion according to § 287 of the Code of Civil Procedure, formed the conviction that with such a market price, an accidental damage, which, moreover, only affected non-supporting parts of the motor vehicle, would no longer have a value-reducing effect.

The decision on costs results from section 97 (1) ZPO.
Müller Wellner Diederichsen
Stoehr customs

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