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Bonn Local Court, judgement of 07.05.2003

In the legal dispute between the plaintiff and the defendant, the Bonn Local Court (Amtsgericht Bonn), at the hearing on 7 May 2003, by the judge at the Local Court (Amtsgericht für
R e c h t recognised:

1. orders the defendant to pay the plaintiff EUR 2638.50 plus 5 % interest above the base rate since 6 May 2002 concurrently with the transfer of ownership and return of the passenger car Peugeot 405 Kombi Diesel, chassis number VF34EDJY271332838.

2. it is established that the defendant is in default in taking back the car.

3. order the defendants to pay the costs.

4. the judgment is provisionally enforceable to the extent of a security of 110 % of the amount to be recovered.



The plaintiff bought the vehicle referred to in the operative part of the judgment from the defendant, which the defendant offered via the Internet with a mileage of 150,490, for a purchase price of DM 2400.00.
The handover of the car took place on 06.04.2002.
The plaintiff claims that the car had actually run approximately 320,000 kilometres and had been purchased as a total loss vehicle from the defendant at a price of 250.00 Euros from the witness.
Due to fraudulent misrepresentation, he demands the rescission of the purchase contract and claims the paid purchase price as well as damages for the train journey to Bonn, fuel filling and taxi costs in the amount of 248.50 Euros.

After the plaintiff withdrew the claim for 10.00 euros (benefits of use), he claims 605 km driven, deducting the benefits of use in the amount of 10.00 euros.

as recognised.

The defendant asks for the action to be dismissed.
She claims that it was not she but a gentleman who sold the vehicle.
It does not contest the fact that the previous owner bought the vehicle as a total loss and that the vehicle had a mileage of 320,000 km at that time.

For further details, reference is made to the contents of the exchanged pleadings.

The court took evidence by hearing the witness. Reference is made to the relevant minutes.

Reasons for decision:

The admissible action is well founded.

The defendant has passive legitimacy. In the internet printout, it is stated as the contact address, which also suggests that this is a limited liability company and that a professional car sales company is selling the used car. It is also clear from the purchase receipt submitted by the defendant that the defendant purchased the vehicle. (Annex K6 to the written statement of 19.03.2003, p. 24).
The test certificate of the exhaust emission test also shows the defendant as the company. If the defendant actually sold the vehicle for a gentleman, this is irrelevant, because the internet advertisement has already created a legal appearance that the defendant is the seller.
The fact that Mr. is listed as the seller in the contract of sale does not change the defendant's right to be a passive party, because it can be identified as the purchaser from the purchase receipt and also from the TÜV certificate.

The court is also convinced of the defendant's deception after the result of the taking of evidence.

The previous owner of the vehicle vividly described the circumstances of the sale to the defendant. The witness stated without doubt that the vehicle had a mileage of 320,000 km.
The witness further testified that he had in no way had an intention to sell when he brought the vehicle to the defendant for repair, but that the defendant had confronted him with the
The owner was persuaded to sell the car by the fact that it was no longer worth anything and that the diesel pump could not be repaired.

His hope to get at least 500.00 Euros for the vehicle was deceived, so that they agreed on 250.00 Euros.

It is irrelevant whether the plaintiff's request is considered a rescission due to fraudulent misrepresentation or a rescission. In any case, the legal consequences are identical.

The current law of obligations applies to the present contract, as the contract was concluded after the law of obligations modernisation act came into force. If the plaintiff's request is regarded as a rescission, the contract would be void from the beginning and the services received would have to be returned.

After deducting the benefits of use, which the plaintiff has correctly calculated, the claim under 1) would prevail.
This also includes the travel expenses from Vienna to Bonn claimed by the plaintiff.
If the contract had not been concluded, the plaintiff would not have had to spend them (negative interest).

If the plaintiff's request is assessed as a withdrawal, the services received are to be returned. According to § 325 BGB, the plaintiff is further entitled to claim damages.
On the basis of this legal basis, the claim for compensation with regard to the travel costs from Vienna to Bonn and back is also justified.

The claim for a declaratory judgement is admissible and well-founded, because the defendant was requested to take back the vehicle on 29.05.2002 (letter from the Austrian Automobile Club).

The decision on costs is based on section 92 (2) of the Code of Civil Procedure; the decision on provisional enforceability is based on section 709 of the Code of Civil Procedure.

The amount in dispute for the application under 2): 600.00 euros.

Judge at the local court


Judicial employee
as clerk of the court
the office

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