In a decision, the Federal Court of Justice dealt with the validity of a clause in a used car warranty that links the buyer's warranty claims to the performance of maintenance, inspection and servicing work in the workshop of the seller/warranty provider or an authorised workshop recognised by the manufacturer.
The plaintiff asserted claims against the defendant under a used car warranty. The plaintiff bought a used car from a car dealer in November 2009 "incl. 1 year used car warranty according to the provisions of the Car Warranty". The warranty agreement signed by the plaintiff and the seller reads:
"The buyer receives a guarantee from the seller, the content of which results from this guarantee agreement (...) and from the enclosed (...) guarantee conditions. This guarantee is insured by the [defendant]".
Section 4(a) of the relevant guarantee conditions states, inter alia:
"The prerequisite for any warranty claims is that the buyer/warranty holder (...) has the maintenance, inspection and care work prescribed or recommended by the manufacturer carried out on the motor vehicle at the seller/warranty provider or at an authorised workshop recognised by the manufacturer (...)".
Under § 6 No. 3 of the warranty conditions it is regulated:
"The buyer/warranty holder is entitled to assert all rights arising from the insured guarantee directly against the [defendant] in his own name. In view of this, the buyer/guarantor undertakes to always claim primarily against the [defendant].
In April 2010, the plaintiff had the fourth service carried out on the vehicle at an independent workshop. In July 2010, the vehicle broke down due to a defect in the oil pump. A cost proposal for a vehicle repair obtained by the plaintiff amounted to €16,063.03. The plaintiff did not have the vehicle repaired at first.
In his action, the plaintiff initially sought payment of € 10,000 plus interest and pre-judicial lawyer's fees from the defendant. The Regional Court dismissed the action. On the plaintiff's appeal, the Higher Regional Court ordered the defendant to pay € 3,279.58 plus interest and pre-trial lawyer's fees, after the plaintiff had only pursued his claim in this amount after repairs had been carried out.
The defendant's appeal, which was allowed by the court of appeal, was unsuccessful. The VIII Civil Senate of the Federal Court of Justice, which is responsible for the law of sales, among other things, ruled that the provision in § 4 lit. Civil Senate of the Federal Court of Justice ruled that the provision in § 4 lit. 1 of the guarantee conditions is invalid pursuant to § 307 para. 1 sentence 1 BGB. The claim condition stipulated therein, according to which it is a prerequisite for any warranty claim that the buyer/warranty holder has the maintenance, inspection and servicing work prescribed or recommended by the manufacturer carried out on the motor vehicle at the seller/warranty provider or at an authorised workshop recognised by the manufacturer, is not exempt from a review of its content under the law on general terms and conditions pursuant to § 307 para. 3 sentence 1 BGB. This is because a maintenance clause is in any case a provision that merely supplements the service agreement and is thus subject to a review of its content if - as in the present case - the guarantee could only be obtained against payment of a fee.
The Court of Appeal interpreted the contract of sale between the plaintiff and the seller of the used car without any error of law to the effect that the plaintiff had obtained the warranty against payment. In support of its interpretation, it referred to the seller's invoice, according to which the plaintiff had purchased the used car "including a 1-year used car warranty" for a total price of € 10,490. The fact that the invoice does not contain a breakdown of the total price according to the purchase price portions for the vehicle and the warranty does not compel a different assessment. It is irrelevant how high the payment for the vehicle on the one hand and the warranty on the other hand is if the interpretation of the purchase contract - as in this case - shows that the total purchase price refers to both. This is because the controllability of the maintenance clause depends only on the consideration for the warranty, not on the amount of the consideration attributable to it.
As the Senate has already ruled, a clause in a used car warranty contract used by the guarantor on the basis of a form is invalid due to unreasonable disadvantage to the customer (§ 307 (1) sentence 1 BGB) if it excludes the guarantor's obligation to perform in the event that the policyholder does not have the maintenance, inspection and care work prescribed or recommended by the vehicle manufacturer carried out, irrespective of whether the policyholder's failure to comply with his maintenance obligation has become the cause of the damage that has occurred. This applies to the provision at issue here in § 4 letter a of the guarantee conditions.
Judgment of the BGH of 25 September 2013 - VIII ZR 206/12
Lower courts:
LG Freiburg - Judgment of 7 March 2011 - 14 O 476/10
OLG Karlsruhe - Judgment of 20 June 2012 - 13 U 66/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
