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BGHZ 90, 198 VIII. Civil Senate
22 February 1984
Professor Basil Markesinis
Raymond Youngs

The claimant is the German marketing company of an Italian manufacturer of construction cranes. It sold to the defendant, which carries on a building enterprise, a revolving tower crane of Type E 231 produced by these manufacturers for stationary deployment. In discharge of the purchase price of 84,399.70 DM, the defendant paid 25,000 DM as a down payment and by agreement traded in its used crane, the value of which the parties have accepted as 45,200 DM. The defendant refuses to pay the remainder of the purchase price of 14,199.70 DM, which the claimant claims in the present action along with other demands. It relies on (...) the absence of a type approval for the crane delivered on the 5th July 1979. (...)



1. The appeal court considers the defendant's claim to rescission to be justified, because the crane as delivered was defective (§ 459 (1) [§ 434] of the BGB). (...)

2. These deliberations of the appeal court do not stand up to legal examination in every respect.

a) A mistake in the sense of § 459 (1) [§ 434] of the BGB occurs when the factual condition of the sold object deviates from what was agreed in the sale contract, and this deviation destroys or lessens the value of the object, or its fitness for its usual use or its use assumed under the contract. What was contractually assumed here was the delivery of a crane which had already undergone a type examination on the part of the manufacturer in the sense of § 25 (2) of the UVV ("cranes"), and was therefore immediately ready for use. The appeal court assumed, as did the defendant, that there was a duty of this kind. That is not challenged by the appeal in law, because the claimant itself has not at any time denied such a duty. On the contrary it made an attempt - admittedly doomed to failure - to fulfil its contractual duty in this respect at the time when the crane was delivered by handing over a type examination approval of the 2nd August 1977.

aa) The appeal court has correctly assumed that the claimant could not fulfil its duty by handing over this document. (...)

bb) Nevertheless it has not been established that the crane was also defective (...) at the point in time of delivery. (...)

b) If on the other hand the appeal court’s view that there was a defect in the thing were to be accepted, the defendant would acquire a right of rescission (...). It could not however rely on this after the supply by the claimant during the course of the first stage of the legal proceedings of a valid type approval of the 22nd January 1980 for the model of crane delivered.

It is admittedly disputed (as, in the nature of things, a case of this kind seldom arises) whether the right of rescission comes to an end if a defect which is present when the risk passes has disappeared by the time rescission is effected (references omitted). This question has not been decided by the Bundesgerichtshof, and does not need a conclusive discussion here either. This is because the defendant's insistence on the right of rescission appears to be an impermissible exercise of a right in violation of the principles of good faith (§ 242 of the BGB).

aa) According to the findings of the appeal court the defendant took the crane into service following on its delivery on the 5th July 1979, and used it until the beginning of December 1979. The fact mentioned in its reply of the 22nd October 1979 that the permission number of the "TUEV" (Technical Surveillance Association) (...) was not impressed on the crane has not deterred the defendant from further use of the crane nor caused it to make an immediate declaration of rescission to the claimant. It made up for failing to do the latter only by its written statement of the 30th January 1980. This was however at a time when the original uncertainty about the validity of the type approval of the 2nd August 1977 was objectively removed by the supplementary certificate given to the manufacturer on the 22nd January 1980, and there were no longer any obstacles to the further use of the crane. In such a case, further pursuit of a possible right of rescission amounts to an impermissible use of a right under § 242 of the BGB.

bb) It is not possible to draw any different conclusion from the fact that the defendant, when it made its rescission declaration, possibly still had no knowledge of the supplementary certificate of the 22nd January 1980. (...) This is because in a case like this in which the defect did not consist of an impairment of the substance of the thing, and has been removed without any risk of untoward consequences by the supplementary certificate, it is only a question of the objective circumstances. The purchaser is not accused of consciously dishonest conduct. Exercise of the right is only impermissible because it would no longer correspond to a proper protection of the interests involved. That applies even if claims against the claimant to compensation for delay (§ 286 of the BGB) or for positive breach of contract might have accrued to the defendant because of delayed supply of the supplementary certificate. In these proceedings this admittedly is not to be proved because the defendant has not raised such claims. But possible claims to compensation could exist independently of the right of rescission. Their existence would therefore not be linked with denial of the defendant's access to the right of rescission by the principle of good faith.


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