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Case:
BGHZ 61, 56 VI. Civil Senate (VI ZR 46/72)
Date:
19 June 1973
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs Irene Snook
Copyright:
Professor B.S. Markesinis

On 31 January 1970 the claimant's sports car was damaged in a collision with a vehicle insured for third party liability by the first defendant. The claimant, a motor mechanic by profession, has himself repaired the damage by using spare parts bought by himself. He demands pecuniary damages for the repairs.

Both lower courts have only partially granted the claim.

In his further appeal, admitted by the appeal court, the claimant opposes the appeal court's view that he is not entitled to claim payment of VAT insofar as this amount would have been part of the labour costs for the repair once costs for spares have been deducted, if a garage had carried out the repair. This claim was successfully brought.

Reasons

I. The appeal court gives the following reasons for its opinion that the defendants need not reimburse the "fictitious" amount of VAT:

Although the claimant has repaired his own car he can, as part of the damages, demand payment of (a proportion of) the repair costs which would have arisen in a garage. But he could only claim VAT insofar as such amount had actually arisen. The duty to pay damages depends merely on the pecuniary loss which the victim incurred through the damage. This does not, however, include a tax which was not invoiced for and could also not have been included in the invoice. Any opposing view would "infringe" the sense of justice" (Werber VersR [1971] 981, 993).

II. The opinion the appeal court's opinion here under consideration is variously supported by other judgments (OLG München VersR [1971] 1025, without reasons; LG München, VersR [1973] 532; AG Köln VersR [1970] 384; AG Bonn VersR [1973] 431) and also in the legal literature (Werber, op. cit.). But it cannot be upheld.

1. The claimant has exercised his right to claim not the restitution in kind as primarily provided for by law but rather the amount of money necessary for it (s. 249, sentence 2 BGB). This is not a direct consequence of the fact that the repair was not carried out or commissioned by the defendants. This can also be the case where the victim, as often happens, agrees to the insurer's request to "permit" a certain form of repair. In such a case, the victim, who thereby prevents the counterplea of "unnecessary" expenditure ,in reality acts as the tortfeasor's agent when carrying out the repairs (see also Streck BB [1971] 1085 in reference to II). But the circumstances of this case are different., as the appeal court also admits, since it basically grants the claimant damages calculated according to an expert's abstract assessment which differs from the expenditures actually incurred.

2. Compensation for VAT would not have arisen if the kind of damage repair consisted of what in these circumstances was usual as far as the claimant is concerned and acceptable as regards the defendants, i.e. that as an exception such repair meant that the claimant repaired his own car (see BGHZ 54, 82 as comparison: transport company with own garage); in such cases the necessary repair costs would not have included VAT (see Streck, op. cit, p. 1087). But the appeal court rightly presupposes that it was unacceptable for the claimant to use his personal knowledge as a car mechanic and his leisure time in the interests of the defendants (BGH, ibid., p. 86 with references); it therefore grants him the right to claim as a "necessary" amount of damages that amount which would have arisen if he had commissioned the repair from an enterprise offering such services.

This claim for compensation under Para. .249, sentence 2 BGB is generally held to be independent of whether or not the claimant has or will only in future repair the damage in the way on which his calculation is based; he is even free to abstain totally from repairing the damage. All in all, this claim is of a fictitious or, rather more precisely, of an abstract nature.

3. In opposition to the appeal court's point of view, nothing else can apply in respect of compensation for a "fictitious" VAT. This is also not, as might seem at first glance, levying of a tax which then is not passed on; this would indeed infringe the sense of justice. Other than in the case decided by the Senate in its judgment of 6 June 1072 - VI ZR 49/71 = NJW [1972] 1460, VAT rather forms a proper part of the damage and is unopposed by any economic advantage which needs to be taken into account.

The separate listing of VAT in invoices is due to tax law and makes no difference to the fact that VAT is just as much part of the general costs ( see also to this point Seltmann NJW [1969] 1153; Hübner NJW [1973] 1029, 1030; both, however, concerned with the question of pre-tax deductions in connection with the law of damages, which is of no interest for this case), i.e. a general tax on consumption linked to the goods or respectively, as here, to performance ( RFH RStB 38, 903 in respect of turnover tax) just like any other public duties which directly or indirectly have found entrance into the costs for and thus the price of goods or services.

Where something can normally only be obtained including the cost of VAT, than VAT does not only increase the price every time, but also the trading value of the goods ( see to these points the extensive deliberations of Streck, op. cit., and in NJW [1970] 1550; and also - although concerning the slightly different case of total economic loss - LG Mainz, NJW [1970] 708; LG Aachen, NJW [1971] 621; Palandt/Heinrichs, BGB, 32. ed., n. 2 b to 249). Thus the loss of an undamaged vehicle can in the first place only adequately be assessed when VAT is taken into account, not so much because this expenditure has probably been part of the original purchase price, but rather because VAT, as a normally required factor, co-determines its value. Where, as here, compensation is expressed in form of services intended to restore the car to its undamaged state, the same must analogously apply. The appeal court's view can thus not be followed where it holds that the claimant received a compensation which is not justified by a corresponding loss of property if VAT were to be included in the calculation of the amount of compensation due.

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