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Federal Supreme Court
Press Office Announcement


No. 77/2010

Effective lump-sum damage clause in car purchase contract

The Federal Court of Justice (BGH) today declared a contractual clause in a car purchase contract to be valid, by which the vehicle dealer's claim for damages in the event of non-acceptance of the vehicle is set at a flat rate of ten per cent of the purchase price, but the buyer is reserved the right to prove a lower damage.
In the case decided, the defendant bought a used passenger car Toyota Prius from the plaintiff, a vehicle dealer, on 10 January 2008 at a price of € 29,000. The general terms and conditions used by the seller contained, inter alia, the following clause:
"1. the buyer is obliged to accept the object of purchase within eight days of receipt of the notice of availability. In the event of non-acceptance, the seller may exercise his statutory rights.
2. if the seller claims damages, these shall amount to 10 % of the purchase price. The compensation shall be higher or lower if the seller proves a higher damage or the buyer proves a lower damage.
On 15 January 2008, the buyer withdrew from the purchase contract. In a letter of the same day, the seller confirmed the withdrawal from the contract. At the same time, she asked for payment of the compensation of ten percent of the purchase price provided for in the purchase contract. The buyer refused this. The action for payment of lump-sum damages of € 2,900 was successful in the lower courts.
The buyer's appeal against this was rejected. The VIII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the law of sales. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for the law of sales, ruled that the lump-sum compensation for damages contained in the seller's general terms and conditions did not violate the prohibition of clauses regulated in § 309 No. 5 letter b BGB* and was therefore valid. Pursuant to § 309 no. 5 letter b BGB, the contractual partner must be expressly permitted to prove that no damage was incurred at all or that the damage was significantly lower than the lump sum. Accordingly, the admission of proof must be expressly addressed in the clause. However, the legal text does not have to be reproduced verbatim. It is sufficient if the reference to the possibility of proof to the contrary makes it clear to a contracting party unfamiliar with the law that it includes the possibility of proving that no damage was incurred at all. This condition is fulfilled in the clause used in the case decided. From the point of view of a contracting party with no legal background, it is obvious that the possibility of proving a lesser damage also includes the possibility of proving that no damage was caused at all.

*§ 309 BGB: Prohibition of clauses without the possibility of evaluation

Even to the extent that a deviation from the statutory provisions is permissible, in general terms and conditions it is invalid
5 (Lump-sum compensation claims)
the agreement of a lump-sum claim by the user for damages or compensation for a reduction in value if
(a) the lump sum exceeds the loss or depreciation to be expected in the regulated cases in the ordinary course of events; or
b) the other party to the contract is not expressly permitted to prove that no damage or a reduction in value has occurred at all or that it is significantly lower than the lump sum;
Judgment of 14 April 2010 - VIII ZR 123/09
AG Mainz -Judgement of 18 July 2008 - 87 C 53/08
LG Mainz - Judgment of 22 April 2009 - 301 S 170/08
Karlsruhe, 14 April 2010
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