OLG Saarbrücken Judgement of 17.2.2004,4 U 163/00-46
I. On the plaintiff's appeal, the judgement of the Regional Court of Saarbrücken - Case No. 12 O 63/98 - pronounced on 17.01.2000 is partially amended and reworded as follows:
1. orders the defendant to pay to the applicant EUR 15 904.63 together with interest of 9 % on EUR 14 603.36 from 14 March 1998 to 9 June 2001 and on EUR 15 904.63 from 10 June 2001.
2. the remainder of the application is dismissed.
3. the counterclaim is dismissed.
II. the applicant's further appeal is dismissed.
III. order the defendant to pay 63 % and the applicant 37 % of the costs of the proceedings at first instance. Of the costs of the appeal proceedings, the defendant shall bear 44 % and the applicant 56 %.
IV. This judgment shall be provisionally enforceable.
Each party may avert enforcement by providing or depositing security in the amount of 115 % of the amount to be enforced, unless the enforcing party provides security in the same amount prior to enforcement.
The plaintiff bought a used Porsche car from the defendant in April 1997 at a price of DM 63,500. The parties entered into the following special agreement, among others: "6 months unlimited warranty on the entire vehicle. Repair only in our workshop in the event of a warranty claim". For further details, reference is made to the deed of sale of April 1997" (file, p. 8).
At the beginning of September 1997, during a journey on the M.-S. motorway near K., a serious engine failure occurred within a construction site. The witness K., who was driving the vehicle, suddenly noticed a rattling noise, but, as there was no hard shoulder, did not want to stop within the construction site, which is why he drove on for about 1 km to the end of the construction site. From there, the vehicle was towed to the defendant's workshop. After the engine had been removed and dismantled, the defendant refused to carry out a repair under warranty on the grounds that the damage was due to improper handling of the vehicle by the plaintiff or the driver of her vehicle. The plaintiff then commissioned a technical report by expert H., who came to the conclusion that the cause of the engine damage had been thermal overheating, that the thermostat separating the large oil circuit from the small one had been defective, but that the oil temperature indicator had worked perfectly, so that the excessive temperature had been apparent. However, it was not comprehensible in which period of time the temperature had risen from the normal value to the critical range (cf. the expert opinion of 17.10.1997, pp. 14 ff, 22 of the appendix).
As the parties could not reach an agreement, the defendant invoiced the plaintiff for the costs of removing the engine in the amount of DM 1,311.00 (cf. the invoice of 10 December 1997, file no. 93). Because of this claim, he refused to hand over the vehicle to the plaintiff, invoking his lien as a contractor (file, p. 25). It was not until July 1998 that he handed over the vehicle in an unrepaired condition.
In the present action, the plaintiff finally demanded that the defendant be ordered to pay DM 70,441.25 (= DM 27,000.00 in probable repair costs, plus DM 22,650.00 in loss of use for the period from 01.10.1997 to 28.2.1998 [= DM 150.- per calendar day], plus loss of use of DM 19,200.- for the period from 01.03.1998 to 06.07.1998 as well as plus DM 1,045.- and DM 546.25 expert's fees, cf. in this connection p. 6 f, 31, 32, 80 of the annex). With regard to the initially announced further claim for the surrender of the vehicle (file, p. 2), the parties unanimously declared the main action to be settled (file, p. 94). The plaintiff took the view that the case under guarantee had occurred and that the defendant was obliged to reimburse the repair costs because he had definitively refused the repair. As he had only handed the vehicle over to the plaintiff in July 1998, he was also obliged to compensate for the loss of use claimed. Finally, the defendant was also obliged to reimburse the costs for the two expert opinions of the expert H. of 17.10.1997 (file, p. 14 ff.) and of 26.01.1998 (file, p. 27 ff.).
The plaintiff (lastly) applied (pp. 81, 94, 159) for the defendant to be ordered to pay the plaintiff DM 70,441.25 together with 9 % interest since 15 September 1997 from DM 27,000.00 and from the remaining amounts from the date of lis pendens.
The defendant has requested that the action be dismissed.
He took the view that there was no warranty claim. The engine damage was solely due to the fact that the vehicle had continued to be driven for at least 1 hour, probably even longer, despite the display of the excessive oil temperature. Since the engine damage was therefore the result of improper use of the vehicle, the plaintiff was not entitled to free repair. Rather, she was obliged to reimburse the costs for the disassembly of the engine arranged by the defendant in the amount of DM 1,311.00 according to the invoice of 10 December 1997 (file, p. 93).
The defendant applied by way of counterclaim (pp. 151, 159 in the annex) to order the plaintiff to pay the defendant DM 1,311.00 plus interest of 4 % since lis pendens.
The plaintiff filed a motion (sheet 159 of the appendix) to dismiss the counterclaim.
After taking evidence by obtaining an expert opinion of the expert H. S. of 23.08.1999 (file, p. 113 et seq.) as well as an oral explanation of this expert opinion (file, p. 156 et seq.), the Regional Court dismissed the action and upheld the counterclaim in its judgement of 17.01.2000 - file no. 12 O 63/98. It denied a warranty claim on the grounds that the engine damage had been culpably caused by the driver of the plaintiff's vehicle. According to the results of the expert opinions obtained, the oil temperature gauge had been in order. Consequently, the driver of the vehicle had been aware of the overheating when observing the relevant display field. He should therefore not have continued driving, but should have stopped and thus prevented the engine damage. The plaintiff was also not entitled to compensation for loss of use. A contract for work and services to investigate the cause of the damage had been concluded between the parties. The defendant was entitled to a contractor's lien on the claim of DM 1,311.00 for the work. The defendant was also not obliged to reimburse the costs of the expert. On the other hand, the counterclaim for payment of the usual remuneration for the removal and dismantling of the engine was well-founded.
The plaintiff filed an appeal against this judgement, which was served on her on 24.01.2000 (file, p. 196), on 24.02.2000 (file, p. 197) and substantiated it on 18.04.2000 (file, p. 208) after extending the deadline for substantiating the appeal until 28.04.2000 (file, p. 206). The plaintiff, with supplementary reference to the submissions and evidence of the first instance (file, p. 217), is of the opinion that the defendant, who has the burden of proof in this respect, did not prove that the driver of her vehicle had noticed or could have noticed the rise in oil temperature and had nevertheless continued to drive in a reproachable manner. In particular, it was completely open how long the oil temperature indicator had been in the red area of the display field. The expert S., who incidentally lacked the necessary experience (file, p. 213), had not been able to determine this period in a concrete and comprehensible manner (file, p. 209 ff).
In the meantime, the plaintiff had the engine repaired and submitted the repair invoice of 29.01.1999 for DM 29,545.06, the amount of which was not disputed and which, according to the plaintiff, had been paid (file, p. 248 ff.). As she only claimed DM 27,000 in the present action, she alternatively substantiated the loss of use damage with the difference of DM 2,545.06 (file, p. 247).
The plaintiff applies (pp. 208, 255, 526 in the annex),
Altering the judgment under appeal
1. order the defendant to pay the plaintiff DM 70,441.25 plus 9 % interest on DM 27,000.00 since 15 September 1997, on a further DM 26,611.95 since 13 February 1998 and on the balance since 2 July 1998,
2. dismiss the counterclaim.
The defendant applies (pp. 227, 255, 526 in the annex),
dismiss the appeal.
He defends the contested judgement, also refers to the submissions and evidence of the first instance (file, p. 227 et seq.) and adds that the amount of the loss of use is at most DM 6,632.35 (file, p. 237 et seq.).
For further details of the facts and the dispute, reference is made to the exchanged pleadings and annexes as well as to the contested judgment.
The senate took evidence by obtaining the statements of the Porsche company of 3 August 2001 (p. 311 of the file), of 14 September 2001 (p. 318 of the file) and of 30 November 2001 (p. 333 of the file), by obtaining the expert opinion of the expert M. of 25 March 2003 (p. 411 ff of the file) as well as by the supplementary statement of this expert of 22 September 2003 (p. 492 ff of the file). Reference is made to the files regarding the content and the result of the taking of evidence.
Reasons for decision
The appeal, to which the provisions of the old version of the Code of Civil Procedure were applicable, is admissible pursuant to §§ 511, 511 a, 516, 518, 519 of the Code of Civil Procedure.
However, it is only well-founded with regard to the repair and expert costs (under I) and the counterclaim (under III). With regard to the loss of use, it is only well-founded insofar as it is alternatively based on the remaining amount from the repair costs invoice (under II).
I. The subject of the appeal is, according to the rough estimate of the private expert H., an amount of 27,000 DM in costs to be expected in the case of the repair of the damaged engine (supplementary expert opinion of 26.01.1998, p. 29 of the attachment). In the meantime, the plaintiff had the vehicle repaired at a cost of DM 29,545.06 (cf. the repair invoice, p. 248 ff. of the appendix). In the alternative, she substantiated the action with the excess amount of DM 2,545.06 (file, p. 247). It must therefore be assumed that, contrary to her original statement in the statement of claim (p. 7 in the appendix), she is now not claiming an advance payment but compensation for damages.
Only § 635 BGB can be considered as the basis for this claim for damages. It is undisputed that the defendant assumed the unlimited warranty for the entire vehicle for a period of 6 months (file, p. 8). The Regional Court correctly interpreted this guarantee promise to the effect that the defendant undertook to remedy free of charge during the guarantee period all defects which occur despite proper use (so-called durability guarantee, cf. on this BGH NJW 1995, 516, 517 left-hand column). According to the established case law of the Federal Supreme Court, the warranty rules of the contract for work and services, in particular § 634 para. 1 sentence 3 BGB and § 635 BGB, are to be applied mutatis mutandis to the buyer's claim for repair resulting from the guarantee promise (BGH loc. cit., page 518). Since it is undisputed that the damage occurred within the warranty period and the warranty period was also within the statutory warranty period (§ 477 BGB), the defendant, as the guarantor in the case of a dispute, must show and prove that the engine damage was caused by the buyer through improper use of the car (BGH loc. cit., page 517 left-hand column; Reinking/Eggert, Der Autokauf, 7th edition, paragraphs 1692 - 1694).
The senate is convinced that the defendant did not provide this evidence after the result of the taking of evidence in both instances:
According to the concurring expert opinions of the experts H. and S., the engine damage occurred due to overheating. The cause of this overheating was a defect of the oil thermostat, which had the consequence that the large oil circuit, which is separated from the small oil circuit, was not opened or switched on, so that the additional cooling via the large oil circuit could not take place (p. 22, 120 f, 124 on file). This is not challenged by the parties. It is thus clear that a case of warranty must be assumed, unless the driver of the plaintiff's vehicle could have recognised the overheating of the engine and could have prevented the occurrence of the engine damage by taking appropriate measures (§ 254 BGB).
The driver of the vehicle was able to read or recognise the overheating solely from the scale of the engine oil temperature display in a round field on the dashboard. On the left side of this field there is a pointer and a scale which ends in a red area (cf. p. 137, 147, 397 of the appendix). According to the operating instructions, if the pointer rises into the red area, the speed should be reduced and, if the temperature does not drop, an authorised Porsche dealer should be consulted immediately (sheet 147 of the original). The overheating of the engine was not indicated in any other way than the one described. In particular, the driver was not made aware of the rising temperature of the engine oil either by a visual or an acoustic signal.
In his private expert opinion of 17 October 1997, expert H. came to the conclusion that it could not be determined in which period of time the oil temperature could rise from the normal temperature to the critical range (file, p. 22). The expert S. commissioned by the Regional Court also repeatedly pointed out in the expert opinion on the preservation of evidence of 23 August 1999 that he was not able to provide information on the length of this period of time (file, pp. 125, 128). However, on the occasion of the oral discussion, he expressed the opinion that the oil temperature display must have been in the red area for such a long time that the driver should normally have noticed this (file, p. 158). The Regional Court followed this opinion - with a longer explanation (pp. 188 - 190 of the case file).
The senate cannot share this opinion. If, on the one hand, an expert cannot provide any information on the minimum period of time between the entry of the engine oil indicator into the red field and the occurrence of the overheating damage, it is not plausible to conclude that this period of time was in any case sufficient to be able to recognise the overheating. Rather, it must be determined whether this period was long enough for the driver to have noticed the pointer entering the red field if he had paid attention to the engine oil temperature at certain intervals. According to the plaintiff's unrebutted submission, the vehicle was driven at a speed of up to about 220 km/h before the damage occurred (file, p. 2). The vehicle in question, which had a 6-cylinder boxer engine and 184 kW or 250 hp (file, p. 120), was approved for such a speed range. At such high speeds, the driver must first and foremost pay attention to the traffic. He can be expected to observe the various display fields on the dashboard at certain intervals, which in the opinion of the senate should not be less than about 5 minutes. Even more frequent observation of the display fields is not justifiable for safety reasons. For example, if one assumes a four-hour journey, the driver would have to observe the temperature display alone about 50 times. Observing the display fields even more frequently would endanger safety - at least in a high speed range that requires the highest level of attention and consideration for other traffic.
The senate pointed out to the parties that it was necessary to clarify the (minimum) period of time during which the pointer was in the red area before the overheating damage occurred (cf. III of the decision to take evidence of 08.01.2002 = file, p. 346). The senate then took evidence on this (cf. the evidence decisions of 12.06.2001 [file, p. 263], of 08.01.2001 [file, p. 344] and of 27.06.2003 [file, p. 486]). However, it could not be established with the necessary certainty that the period of time was so long that the driver of the plaintiff's vehicle could have recognised the overheating in time. This is to the detriment of the defendant, who is obliged to provide evidence:
a. Porsche already stated in its statement of 03.08.2001 that a meaningful answer to the question of the time period of the recognisability of the overheating of the engine could at best be given when taking into account all boundary conditions such as, for example, driving profile, oil level, viscosity of the oil, type of system fault that occurred (defect of the oil thermostat/engine cooling fan function, condition of the chain slide rails, etc.) as well as under the condition that all other engine condition data are known (sheet 312 of the appendix).
In its further statements of 14.09.2001 and 30.11.2001, even after consultation and intensive discussion with its specialist departments (file, p. 318), it was unable to provide any further details on the (minimum) period of time during which the overheating of the engine or the engine oil was recognisable. In response to the Senate's third question, it did say that the conclusion was justified that the car had been driven "continuously" in the red zone (file, p. 333). However, it did not explain which period of time was to be understood by "persistently". In the absence of a minimum period of time, however, it is not possible for the senate to determine whether the period of time was long enough for the driver to have been able to recognise that the temperature of the engine oil was too high if he had looked at the oil gauge at regular intervals.
b. As the Porsche company repeatedly mentioned in its statements an approach to the question of proof by means of a driving test, the senate ordered that a corresponding expert opinion be obtained (evidence order of 08.01.2002, p. 344 on file). The expert M. carried out a driving test with a comparable Porsche, whereby he deliberately caused the defect of the thermostatic valve beforehand (file, p. 424). He came to the conclusion that a certain period of time between reaching the indicator in the red field and the occurrence of the damage could not be stated (file, p. 432). At a constant speed of 200 km/h, the period would be about 28 minutes, at a constant speed of 210 km/h 7 to 10 minutes and at a constant speed of 230 km/h 4 - 7 minutes (file, p. 436).
c. The minimum period of 4 minutes determined by the expert may have been even shorter in the case in dispute. The expert pointed out that the test vehicle had been provided with a new oil filling and a new oil filter and that the oil filling was proper (file, p. 436). Whether these ideal conditions existed in the case of damage in dispute is an open question. It is true that the plaintiff (unrebutted) claimed to have refilled the oil up to the total volume of 11 litres a few days before the event of damage (file, pp. 70, 72). However, it cannot be excluded that the oil quantity on the day of the damage was no longer optimal without falling below the minimum and that the plaintiff can be blamed for this. This is not merely theoretical in view of the defect of the thermostat, which may have led to an increased engine oil temperature and a consequently increased oil consumption even in a lower speed range. In addition, with regard to the determination of the minimum period, both according to the letters of Porsche and the statements of the expert M., the actual driving profile is of particular importance. This driving profile can no longer be reliably clarified or reconstructed today. From this point of view, too, there is consequently an uncertainty in the determination of the minimum period. Furthermore, it has to be taken into account that a longer uphill drive may have led to a faster overheating with the consequence of a reduction of the minimum period determined by the expert M. (p. 494 et seq. of the appendix). Finally, the expert carried out the comparative journey at an outside temperature of 3°C (file, p. 426), whereas the temperature at the time of the damage was 25°C according to the plaintiff's submission (file, p. 471). Even if, according to the result of the supplementary statement of the expert M., an increased outside temperature only leads to a slight change in the rise of the engine oil temperature (file, p. 493), it is nevertheless not impossible and also not improbable, in combination with all other uncertainty factors, which could also have led to a reduction of the minimum period, that the minimum period was even less than four minutes. Therefore, based on the overall circumstances presented, the Senate is not convinced that the period of time during which the indicator of the engine oil temperature was in the red field was so long that the driver of the vehicle would have been able to recognise this if he had paid attention to the indicator field at certain intervals (of about five minutes, for example), § 286 (1) ZPO.
(5) It cannot be assumed that the plaintiff or the driver of her vehicle was at fault from the point of view that the vehicle had been driven with too little engine oil. It is true that the defendant claimed to have noticed that 5 litres of oil were missing when removing the engine (file, p. 40), but the plaintiff denied this (file, p. 72). The plaintiff, however, uncontradictedly claimed to have refilled the oil (up to a total volume of 11 litres) a few days before the damage occurred (file, p. 69 f, 72 on file). Due to the overheating of the engine, the engine damage that occurred and the additional oil consumption or oil loss that may have been caused by this, it is no longer possible to establish that the vehicle was driven with too little engine oil before the damage occurred. The defendant did not provide such evidence.
The defendant's request in the written statement of 7 October 2003 for a further expert opinion to be obtained (on the assertion of an approximately half share of the uphill and downhill driving distance as well as on the impossibility of constantly driving over 200 km/h, cf. sheet 499 f. of the appendix) was not to be granted, as the overall circumstances as they prevailed at the time of the damage could no longer be reconstructed or reconstructed in a way that could be proven.
6 The plaintiff cannot be blamed for the fact that the driver of her vehicle did not stop immediately when the rattling noise first occurred, but continued driving until the end of the construction site. According to the statements of the expert S., which are not objected to in this respect, driving on was not the cause of the damage, because the damage had already occurred at the time of the occurrence of the noise (file, p. 158).
For the reasons set out above, the defendant has not proven that the engine damage was caused by the plaintiff or the driver of her vehicle through improper use of the car. Consequently, there is a warranty damage to be repaired by the defendant. Since the damage is based on a circumstance for which the defendant is responsible on the basis of the assumed warranty, the defendant is obliged to pay damages. There was no need to set a deadline with a threat of refusal according to § 634 para. 1 BGB (old version) because the defendant seriously and finally refused to repair the damage free of charge for the plaintiff (letter of 7 November 1997 [= p. 53 f = p. 301 = p. 305 of the original]).
8. the amount of damage:
a. The costs of repairing the vehicle are to be reimbursed, the amount of which is not disputed and which amount to 29,545.06 according to the invoice of 29 January 1999. The plaintiff claimed DM 27,000.00 of this amount in the action. With the remaining amount of DM 2,545.06, she alternatively justified the demanded loss of use (file, p. 247).
It cannot be established that the repair of the vehicle led to an advantage which the plaintiff would have to take into account (Palandt/Sprau, Kommentar zum BGB, 60th ed., § 635, marginal no. 6 a). The defendant has not conclusively argued this either on the merits or in terms of amount.
b. In addition, the defendant has to reimburse the plaintiff for the costs of the two pre-trial expert opinions of the expert office H. in the amount of DM 1,015.45 (liquidation of 17.10.1997, p. 32 of the A.D.) and DM 546.25 (liquidation of 26.01.1998, p. 31 of the A.D.). The plaintiff has submitted, without being contradicted, that the parties agreed that the defendant would bear the costs of the expert opinion in the event that an error on the part of the plaintiff was not proven (file, p. 4, 258 of the A.D.). As stated, this is the case. Whether obtaining the expert opinions served the direct elimination of the cause or consequences of the damage and was therefore closely and directly related to the defect with the consequence of an obligation to pay damages under § 635 BGB (BGHZ 54, 352 ; BGHZ 92, 308 ) can be left open.
II The action for compensation for loss of use for the period from 1 October 1997 to 28 February 1998 in the amount of DM 22,650.00 (= 151 days at DM 150.00 each, file, p. 6 f.) and for the period from 1 March 1998 to 6 July 1998 in the amount of DM 19.200.00 (= 128 days at DM 150.00 each, file, p. 80) is only justified insofar as the plaintiff alternatively substantiates this claim with the remaining amount of DM 2,545.06 from the repair costs invoice of 29.01.1999. With regard to the further loss of use, however, it is not well-founded because the plaintiff caused this damage herself, § 254 (2) BGB. The remaining points in dispute regarding the merits of the claim can be left aside.
It is undisputed that the defendant made the surrender of the vehicle to the plaintiff solely dependent on the plaintiff paying the costs for the dismantling and disassembly of the engine in order to examine the cause of the damage in the amount of DM 1,311.00 (cf. the invoice of 10 December 1997 [= sheet 52 in the appendix = sheet 261 in the appendix]). The defendant, who had already denied in a letter of 7 November 1997 that the damage was covered by the guarantee and had definitively refused to repair the vehicle free of charge for the plaintiff (file, p. 53), had his representative declare in a letter of 8 December 1997 that he would exercise his entrepreneur's lien until the invoice had been paid (file, p. 25). It must therefore be assumed that the plaintiff could have obtained the return of the vehicle at any time by paying the invoice amount of DM 1,311.00 and thus could have prevented the occurrence of the loss of use damage, which amounts to a total of DM 41,850.00 for the asserted period from 01.10.1997 to 06.07.1998 (= 279 days at DM 150.00 per day), by using only small financial means. In view of the high compensation amount of DM 150 per day, it was obvious that the loss of use damage would exceed the invoice amount demanded by the defendant after just over a week. As the invoice amount of DM 1,311.00 was relatively low, payment would have been possible and reasonable for the plaintiff. In any case, she did not assert anything to the contrary. Moreover, she could have paid subject to the reservation of reclaim. The defendant should not have rejected such a payment (BGH, NJW 1982, 2301 [2302 re. Sp.]; BGH, NJW 1984, 2826 [re. Sp.]; BGHZ 139, 357 [367 f]; Senate judgement of 19.08.2003, Ref. 3 U 109/03 - 10 -; Palandt/Heinrichs, Kommentar zum BGB, 60. Aufl., § 362 Rdnr. 11). He would not have rejected it either, because he had made the surrender of the vehicle dependent on the payment of the invoice amount.
Because of the small amount of DM 1,311.00 and the possibility of payment under the reservation of reclaim, the plaintiff was also reasonable in view of the fact that, according to the result of the present decision, there was damage covered by the guarantee and the defendant had thus wrongly invoked a contractor's lien. Admittedly, the defendant could also have averted the damage by waiving his right of retention. However, the duty to mitigate damages according to § 254 BGB is incumbent on the injured party who demands compensation for the damage he has suffered. According to § 254 BGB, he is obliged to avert or minimise the damage within the limits of what is possible and reasonable.
Contrary to the plaintiff's view (sheet 257 f. of the appendix), she is also not entitled to a claim for loss of use at least for the period from 15 November 1997 to 15 December 1997. The claim for compensation for loss of use only arose from the time when the defendant refused to hand over the vehicle. From this time on, the plaintiff could have obtained the surrender at any time by paying the invoice amount of DM 1,311.
4 The action based on compensation for loss of use is therefore only well-founded insofar as it is alternatively based on the remaining amount of DM 2,545.06 from the invoice of 29 January 1999.
The ancillary claims are justified in the amount awarded. The plaintiff did not show any default on the part of the defendant prior to the lis pendens (14.03.1998, sheet 34 of the appendix), neither with regard to the advance payment or the compensation for damages nor with regard to the costs of the experts. In the statement of claim, the plaintiff only claimed an amount of DM 27,000.00 for the repair costs. With regard to the remaining amount of DM 2,545.06, which was only claimed in the statement of claim of 7 June 2001, interest is only justified from the date of receipt of this statement by the defendant, which can be assumed to be 10 June 2001. The defendant did not dispute the amount of the interest rate of 9 % by using bank credit.
III The counterclaim is not well-founded. As there is damage under warranty, the defendant is not entitled to compensation for the costs of removing and dismantling the engine in order to determine the cause of the damage. The warranty promise also includes these costs.
IV. The decision on costs follows from § 92 (1), § 97 (1) ZPO. The decision on provisional enforceability results from §§ 708 no. 10, 711 ZPO. § 713 ZPO was not to be applied because it cannot be assumed that the conditions under which an appeal against the judgement takes place are undoubtedly not fulfilled by the parties. Admittedly, the appeal was not to be allowed. However, the plaintiff's appeal against non-admission was admissible pursuant to § 26 no. 8 of the Introductory Act to the Code of Civil Procedure (EGZPO, n.F.), as its complaint in the appeal proceedings amounted to more than EUR 20,000.
The value of the appeal dispute was set at EUR 37,987.61 (= DM 70,441.25 + DM 2,545.06 residual amount from the invoice of 29 January 1999 + DM 1,311 counterclaim = a total of DM 74,297.31 = EUR 37,987.61). The remaining amount of DM 2,545.06 was to be taken into account in accordance with § 19.1 sentence 2 GKG. The plaintiff had alternatively substantiated the claim with this amount (file, p. 247). In fact, however, it is an auxiliary claim (instead of compensation for the loss of use, alternatively DM 2,545.06 compensation for repair costs). Since a decision was made on the alternative claim, it had to be taken into account in accordance with the value of the dispute, § 19.1 sentence 2 GKG.
The appeal is not admitted because the case is not of fundamental importance and the further development of the law or the safeguarding of a uniform case law does not require a decision of the appellate court, section 543 (2) ZPO (new version).