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Federal Supreme Court

Press Office Announcement

No. 119/2003

Federal Supreme Court on the question of when a motor vehicle is still brand new


The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales, among other things, has now defined the maximum service life of a vehicle. Civil Senate of the Federal Court of Justice (Bundesgerichtshof) has now determined the maximum service life until the end of which a motor vehicle can still be considered brand new as a rule.

The plaintiff ordered a passenger car from the defendant, a car dealer, on 30 June 2000 at a purchase price of DM 53,595. The purchase contract form used by the defendant stated "binding order for new motor vehicles". On 9 August 2000, the plaintiff was handed over a vehicle of the model he had ordered, which had been manufactured on 30 November 1998. This model had been manufactured unchanged from November 1998 until the time of purchase. The plaintiff filed an action for rescission of the purchase contract because the vehicle was no longer "brand new" due to its age, contrary to the assurance in the purchase contract.

The Higher Regional Court (Oberlandesgericht) upheld the action and took the view that an unused vehicle that had been manufactured 19 months prior to the conclusion of the purchase contract was no longer "brand new" within the meaning of the case law of the Federal Supreme Court (Bundesgerichtshof) even if the model of the vehicle continued to be manufactured unchanged and did not have any defects caused by the time it had been standing. The question from which period of time between production and conclusion of the purchase contract or delivery a vehicle is no longer "brand new" in this sense has so far been answered inconsistently in the case law of the Higher Regional Courts. The Federal Supreme Court therefore allowed the appeal of the defendant in order to ensure a uniform case law.

In today's judgement, the Federal Supreme Court dismissed the appeal. It now clarifies its case law on the factory newness of a motor vehicle to the effect that an unused motor vehicle is regularly still "factory new" if and as long as the model of this vehicle continues to be built unchanged, if it does not have any defects caused by a longer period of standing and if there are no more than 12 months between the manufacture of the vehicle and the conclusion of the purchase contract.

The Federal Court of Justice points out that according to the perception of the market, the duration of storage is an essential factor for the valuation of a motor vehicle. A long period of storage is a factor that reduces the value for a buyer of a new car. The motor vehicle is subject to an ageing process that begins when it leaves the manufacturing plant. Basically, the condition of the vehicle deteriorates through the passage of time due to material fatigue, oxidation and other physical changes. Even storage under optimal conditions can only slow this down, but not prevent it. As a rule, it can therefore be assumed that a storage period of more than 12 months eliminates the factory newness of a new vehicle.

Judgment of 15 October 2003 - VIII ZR 227/02

Karlsruhe, 15 October 2003

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