Remuneration of motor vehicle experts

The X. Civil Senate of the Federal Court of Justice had to decide in two cases on the question of the remuneration to which motor vehicle experts are entitled vis-à-vis their clients for the preparation of expert opinions on motor vehicle damage. Since in both cases a specific remuneration had not been agreed upon the award of the contract, a fee within the meaning of § 632 para. 2 BGB did not exist and a customary remuneration within the meaning of § 632 para. 2 BGB was not ascertainable according to the courts of appeal, they had assumed that the experts had been entitled under §§ 316, 315 BGB to determine the amount of the remuneration to which they were entitled at their reasonable discretion. The Berlin Regional Court had assumed that the assessment of the remuneration according to the amount of damage determined in the expert report was in accordance with equitable discretion (judgement of 8 April 2005, 56 S 121/04); the Traunstein Regional Court was of the opinion that such a method of calculating the remuneration was inequitable and that the expert should rather assess the amount of his remuneration according to the time spent on the expert report (judgement of 29 July 2005 - 5 S 2896/04).

In both cases, the appeal led to the case being referred back to the court of appeal for a new hearing and decision. The senate decided that the order for the preparation of an expert opinion on a motor vehicle accident damage is a contract for work and services. According to this, the client owes the customary remuneration if a remuneration has not been agreed and a valuation does not exist. It is not already impossible to determine what remuneration is customary if no exact amount can be determined that is usually demanded and paid for comparable services. Rather, a customary remuneration within the meaning of section 632 (2) of the German Civil Code may also exist if it can be determined that remuneration is demanded and paid for comparable services within a certain, limited range, so that the court can determine a regularly reasonable amount within this range of amounts usually demanded and paid. The appellate courts did not make the findings necessary for such a determination of the usual remuneration to the extent required.

Only in the event that a customary remuneration could not be determined for the new hearing and decision, even taking into account the requirements of the revision judgements, the senate pointed out that the expert could determine the remuneration according to equitable discretion. If the expert determines an appropriate lump sum for routine expert opinions based on the amount of damage, he does not exceed the limits of the leeway granted to him by law.

Judgments of 4 April 2006 - X ZR 80/05 and X ZR 122/05

AG Tempelhof-Kreuzberg - 5 C 341/04 - Decision of 17.11.2004 ./. LG Berlin - 56 S 121/04 - Decision of 08.04.2005

and

AG Mühldorf a. Inn - 2 C 1190/03 - decision of 15.04.2004 ./. LG Traunstein - 5 S 2896/04 - decision of 29.07.2005;

Karlsruhe, 4 April 2006

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