Despite many attempts to provide a remedy, the purchaser potentially does not have to accept a defect in a new car that is irreparable.
GRP Rainer Lawyers and Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com/en explain: Negligible defects in a new car which are a mere trifle are generally not a reason for rescission. However, minor defects that nevertheless by their character considerably affect the passengers represent an exception to this.
This was the decision of the Frankfurt/Main Higher Regional Court in favour of the purchaser in a case concerning a “Bagatellschadens” (“minor defect”). The judgment of 28 February 2013 (Az.: 3 U 18/12) was based on a case in which a purchaser acquired a new car that ought to have been delivered at the end of January 2008. After apparently various defects were subsequently complained of and also partially rectified by the seller, the purchaser gave notice for the first time in July 2009 of a clunking noise coming from the underbody of the vehicle. After 22 failed attempts on the part of the seller to remove the defect, the purchaser withdrew from the purchase agreement and demanded return of the purchase price. He enforced this in time by raising an action.
In the opinion of the judges he was right to do so. It referred to the claimant as being entitled to rescind due to the constantly recurring clunking noise from the front wheel suspension. However, it did not focus as usual on the financial repair costs, according to which it would likely only be a matter of a negligible defect. Instead, the judges gave priority to the subjective significance of the defect to the respective car passengers. Thus an expert opinion seemingly revealed that although the noise occurred irregularly it was also clearly noticeable while driving.
In the view of the Court, the claimant was therefore entitled to rescind. Only compensation for loss-of-use had to be offset against the repayable purchase price.
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