The 4th Civil Senate of the Higher Regional Court of Hamm ruled that the statement "Jahreswagen - 1 Vorbesitzer / 1. Hand" ("Annual car - 1 previous owner / 1st hand") in a rental car is misleading if the type of previous owner is not disclosed.
In the underlying case, a car dealer had offered a car with the description "Jahreswagen 1 Vorbesitzer" and "1. Hand" via an internet platform. This car had been used commercially by two car rental companies. Another dealer considered this to be misleading and obtained an injunction against the offerer in preliminary injunction proceedings (Landgericht Essen, order of 18 October 2010, file number 45 O 5/10).
Upon the objection of the offeror, the Regional Court of Essen overturned this decision and denied that it was misleading. The indication of the previous owners was formally understood as a designation of the registered owners. It was not necessary to provide information about commercial use as long as this use did not result in a reduction in value (Landgericht Essen, judgement of 19.03.2010, file number 45 U 5/10).
The 4th Civil Senate of the Higher Regional Court of Hamm has now confirmed the injunction of the Regional Court. It was misleading if, in addition to the use of the term "year-old car", the number of previous owners was referred to without providing information about the type of previous ownership. The average consumer does not understand the indication of previous owners in purely formal terms, but associates it with the idea of how many people have used the vehicle so far and for what purposes. The consumer took from this information how the car had been driven and looked after so far. Rental vehicles were used by drivers with varying temperaments, driving skills and attitudes to care, which had an impact on the wear parts and the state of care.
Judgment of the 4th Civil Senate of the Higher Regional Court of Hamm, file number I-4 U 101/10
Source: Press release of the President of the Higher Regional Court of Hamm of 30.08.2010
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de
