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Case:
BGH VII ZR 363/04VII. Civil SenateVII ZR 363/04
Date:
14 September 2005
Translated by:
Tony Weir
Copyright:
Sir Basil Markesinis

§ 476 BGB
a) A defect in purchased goods may "manifest itself" after the risk has passed even if it could have been noticed by careful inspection at the time of delivery.
b) The presumption that a defect already existed at the time the risk passed may apply even if the defect is one which could arise at any time so that one cannot infer with assurance that it existed at the time of the passing of the risk.
c) The presumption that a defect existed at the time the risk passed may apply to external defects such as damage to the bodywork of a vehicle, but it does not apply in the case of exterior defects which a non-specialist purchaser could not fail to notice.

[The dispute is as to whether the claimant is entitled to withdraw from the purchase of a motor vehicle.]

On 28 October 2003 the claimant, not acting in the course of any business, bought from the defendant motor dealer a used Ford Fiesta Ambiente which had served as a demonstration model and had done 13,435 kilometers. The vehicle was delivered that day to the claimant against payment of the price. The claimant and the defendant's manager thereupon signed a document on which the condition of the vehicle could be indicated. Except for the tyres and wheel-hubs all the other parts of the vehicle, including carriagework, seats, upholstery and cushions was classed as first-rate "Condition unobjectionable, only normal slight signs of use and wear, fully operational". A slight scratch on the passenger door was indicated in handwriting "paint scratched". The document ended by stating that it was the "basis for the seller's one-year guarantee against defects."

On 26 November 2003 the claimant wrote to the defendant giving him until 10 December to indicate his willingness to cure the following defects:
damage to back nearside wheel-hub; distortion of the right front wing; damage to paintwork on the edge of the rear lefthand wing; stains on the back seat and the passenger's seat. In good time the defendant agreed to repair the wheel-hub and to clean the back seat, but contested the other alleged defects. The repairs were never effected.

By letter dated 10 February 2004 the claimant declared that he was withdrawing from the contract and demanded that the defendant take back the car and return the purchase price. The defendant declined to do so.

The claimant's suit for the return of the purchase price less an allowance for the kilometres run was successful at first instance ..., and the defendant now appeals.

Reasons: ....
II.
The court below was correct to conclude that the car bought by the claimant was defective in that the front right wing and mudguard were deformed, and that this defect could be presumed to have existed at the time the risk passed.

a) If the distortion of the front right wing and bumper existed at the time the risk passed this constituted a defect under §434 (1)(1) BGB. ...

b) It is to be presumed under §476 BGB that such distortion existed at the time the risk passed, that is, when the vehicle was delivered to the claimant. ...

bb) Under §476 BGB it is to be presumed that a defect which manifests itself within six months of the passing of the risk existed at that time unless such a presumption is inconsistent with the nature of the item or the defect.

(1) The appellant argues that the presumption is inapplicable: since the distortion of the bodywork could have been caused by the claimant himself and he had not proved that it was present at the time the risk passed, it did not constitute a defect at all. This is a poor argument.

It is certainly true that even under the new law the buyer must prove the existence of the facts that amount to a defect and that to the question whether or not there is a defect the reversal of proof under §476 BGB does not apply.

In the present case, however, it is clear what caused the distortion of the bodywork [on the findings of the courts below, relying on expert evidence, it was due to a lateral impact from outside]. This being so the only doubt about whether or not there was a defect turns on whether this lateral force was exercised before or after the vehicle was delivered to the defendant. But if in such a case the buyer had to prove that the deformation of the bodywork constituted a defect at the time of sale and was not due to any mishandling on his part, or what comes to the same thing, damage done by a third party, the reversal of the burden of proof under §476 BGB would be rendered almost pointless, and this would conflict with the aim of the national, not to mention the European, legislator to strengthen the protection of the consumer in relation to defects in purchased goods (references).

The rule that the buyer must prove that there was a defect, taken in conjunction with the purely temporal effect of the reversal of the burden of proof, must be taken to mean that the presumption under §476 BGB can be invoked by the buyer when the question whether or not there was a defect turns solely on the question whether shortcomings in the thing which are shown to exist six months after the passing of the risk already existed at that time.

(2) Equally unsuccessful is the appellant's argument that the reversal of the burden of proof under §476 BGB applies only where a defect, though existing at the time of the passing of the risk, was not yet detectable or had not yet appeared. There is no basis for any such restriction in the wording of the provision, and it would be inconsistent with the aim of the legislator to improve the protection of the consumer. Even a defect which could have been detected by a thorough pre-delivery inspection may "manifest" (zeigen) itself only after the risk has passed, though admittedly if a defect is such that the buyer could not have failed to notice it before delivery the reversal of the burden of proof under §476 does not apply, the reason being that in the case of such a defect the presumption that it already existed before the passing of the risk is otiose.

cc) The deformation of the front right fender and bumper are defects such that the application of the presumption that they existed before the risk passed is quite appropriate.

(1) This court has already decided that §476 applies even where the goods sold are second-hand.

(2) The appellant refers to a view to be found in the literature to the effect that the presumption of §476 BGB is inapplicable when the goods have suffered external damage, as it might be from a motor accident: since a defect of this kind can occur at any time one cannot safely infer that it existed at the time the risk passed. ... The court below was right not to accept this.

The very wording of the provision suggests that the presumption in favour of the buyer ought to be of general application: it should be excluded by reason of the nature of the defect only in exceptional cases. It would not be consistent with the relationship of rule and exception if the presumption were held to be inapplicable to every defect of which it could be said that since it could have arisen at any time it was not sufficiently probable that it existed at the time the risk passed. The presumptive rule would then be futile whenever it could not be established with sufficient certainty when the defect actually arose. Such a restriction of the reversal of the burden of proof would largely deprive the consumer of the protection which the legislator intended to confer.

We can leave aside the question whether the court below was right to hold that in the case stipulated the presumption is inapplicable if the seller could not have known of the defect at the time of the passing of the risk. ...

It is true that the presumption does not apply if the defect consists of external damage to the thing which even a lay purchaser could not fail to notice at the time the risk passed to him: this is because in such a case one the buyer can be expected to complain, and his failure to do so speaks against the existence of the defect at that time. But [given the findings of fact below] this is not such a case. ...

c) The appellant is wrong to take issue with the view of the court below, that the document regarding the condition of the car which both parties signed at the time of the handover did not prove that there was no damage to the right front of the vehicle at that time ... In any case the form is not probative of the condition of the vehicle at the time of the transfer: as an unofficial document all it establishes is that the parties actually made the declarations it contains (§416 ZPO). This is no more than an element in the defendant's attempt to prove the necessary fact, that the damage to the bodywork was not present when the vehicle was transferred, an element already weakened by the fact that the damage, as already stated, would not easily be detected by a layman, and that it might well have existed but not have been noticed by the claimant when the form was drawn up.

2. There is, however, a procedural error which means that the decision of the court below cannot be upheld: it ignored the defendant's argument that since the damage to the wing and bumper could be remedied for a mere €100, the breach is so trivial that the claimant has no right to withdraw from the contract of sale (§323(5)(2) BGB). ...

This argument is relevant because if it be the case that the damage to the front wing and bumper costs no more than €100 to repair, this breach of contract by the defendant is insignificant , and so, by §323(5)(2), the claimant cannot withdraw from the contract of sale. We can leave aside the question whether in applying this provision to a proven defect one must always go by the cost of repair or decide what percentage of the price or value of the item must be reached for a defect to be held significant. If, as the defendant asserts, the cost of repair is here a bare 1% of the purchaser price this is clearly trivial and insignificant.

The claimant complains of other defects but on the facts and at this stage of the litigation it is irrelevant whether or not they are so trivial a breach as to bar withdrawal under §323(5)(2) BGB. There is a different reason why the claimant cannot withdraw on the ground of the damage to the right rear wheel-hub and the stains on the rear seat, namely that, according to the findings below, the defendant declared, within the time set by the claimant, that he was ready to put them right. Whether the stains on the passenger seat constituted a defect at all is not clear from the decision appealed, and the court below also left open the question whether, contrary to the assertions of the defendant, the damage to the paintwork on the rear left wing existed at the time of the handover.

The matter must therefore be remanded to the court below.

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