Case law

  • Case Details
    • National ID: VIII ZR 91/04
    • Member State: Austria
    • Common Name:link
    • Decision type: Other
    • Decision date: 22/12/2004
    • Court: Oberster Gerichtshof (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 1, 2.
  • Headnote
    The provisions concerning consumer sales (§§ 474 et seqq. BGB) do not apply in the case of a purchaser (consumer) buying goods for private use and, by conclusion of the contract, with regard to the seller (trader) acting as a tradesman misrepresenting the truth in order to close the deal.
  • Facts
    In October 2002, the claimant purchased a used passenger car Fiat Barchetta for 6.500 Euros from the defendant, a commercial car dealer. The claimant purchased the vehicle for private use. Knowing that the defendant only wanted to sell the car to a trader without any guarantee, he closed the transaction as a trader signing the following handwritten special agreement: “Without guarantee. Trading deal. Year of construction 1995. First registration date 03/00 in Germany.” The claimant demanded to rescind the contract reasoning that the car showed technical defects and had been registered in Italy before the registration in Germany. This fact deviated from the statement at the conclusion of the contract.
    The claimant was unsuccessful in all judicial instances.
  • Legal issue
    The “Bundesgerichtshof” (German Federal Supreme Court) stated that the seller could rely on the validity of the exemption clause (sale without any guarantee) since § 475 BGB (based on Art. 7 Para 1, sentence 1 of the Consumer Sales Directive) does not apply in this case.

    The claimant wanted in fact to buy the car not for commercial reasons but for private use as a consumer (Definition of consumer in § 13 BGB, German Civil Code). But, according to the court, the provisions of consumer protection in §§ 474 et seq. BGB do not apply if the purchaser acts as a trader by conclusion of the contract and therefore simulates an intended commercial purpose.
    In its opinion, this conclusion results from the basic principle of good faith (venire contra factum proprium) being stipulated in § 242 BGB and the legislative material to the German Consumer Protection sections.

    In this context, the Court furthermore examined the European principle of whether the interpretation conforms to the directives. The relevant criteria for the definition of the term “consumer” were in fact not explicitly determined in Art. 1 para 2 lit. a. Consumer Sales Directive, but without any doubt in case of fraudulent deception the directive’s provisions of consumer protection would not apply for the benefit of the purchaser. The court argues that the principle of good faith is, on the one hand, acknowledged in Community Law (ECJ, ECR, 1976, 1851, para 11 and ECJ, ECR, 1984, 2417, para 18). On the other hand, the notion of consumer is used in the directives and intergovernmental conventions, such as in Art. 13 para 1 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and in Art. 5 Convention on the Law Applicable to Contractual Obligations. Thus, their relevant legislative motives could be consulted in order to interpret the notion of consumer in the European law of the directives, including the Consumer Sales Directive.

    From this analysis arises that someone who pretends to be a trader and willfully deceives the other party, cannot be considered to be a “consumer”.
  • Decision

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