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Production of the VW Caddy
Photo: imago stock & people / imago / newspix
It was about a VW Caddy bought in 2015 with a manipulated diesel engine.
Instead of a software update to repair the damage, the buyer wanted a new vehicle as a replacement and sued his dealership.
The Higher Regional Court of Braunschweig initially rejected the lawsuit, but the Federal Court of Justice conceded the decision on Wednesday and referred the case back to Braunschweig.
For affected diesel buyers who are still arguing with their dealer about replacing their car, this means that car dealerships cannot simply refer to the cheaper software update.
New car buyers have the right to have a defect "completely, sustainably and professionally removed" within a two-year period.
Insisting on a brand-new replacement car is not fundamentally impossible within the two years after the conclusion of the contract, even if a higher-quality successor model is already on the market, according to the BGH in its decision (Az. VIII ZR 190/19).
However, if the list price is more than a quarter higher, an additional payment by the buyer must be checked.
The VW Caddy owner would have to pay part of the surcharge.
New criteria apply to all new car buyers
The higher regional court must now examine whether the new model is actually so much more expensive than the one originally purchased.
The burden of proof applies here to the seller, decided the BGH.
The buyer's claim should not be undermined, nor should the seller be released from any associated burden.
That is why the buyer usually only has to compensate up to a third of the difference, in exceptional cases up to half.
The BGH also stated that a seller could only refuse a new delivery if the defect was completely eliminated by the repair offered and no further defects resulted.
The buyer in the current case had argued that the software update with the thermal window would result in further deficiencies.
If the customer is afraid of consequential damage from the update, be it on the dealer to dispel such doubts in court, according to the BGH.
If necessary, an expert must be consulted.
The criteria developed on this point apply not only to the diesel scandal, but to all new car buyers.
Because of the VW scandal engine EA189, only very few buyers argue with their car dealer, according to Volkswagen.
There is still a low double-digit number of proceedings.
Most of those affected have sued VW as a manufacturer for damages for systematic deception.
fww / dpa / AFP