Bgh njw 2022, 1348

Bgh njw 2022, 1348

The modernized law of obligations has reorganized the disturbances of performance. There the thought of the fulfillment of the contract more strongly in the foreground put. In the liability for material defects under purchase law the redhibitory action was abolished and the – priority – claim for supplementary performance (§§ 437 no. 1, 439 BGB) introduced. Withdrawal, reduction and compensation because of a defective performance have in principle to the prerequisite that the buyer asks the seller to perform or supplementary performance, set a deadline and the deadline has expired (§ § 437 no. 2 and 3, 323, 281 BGB). However, there is the case that the buyer without setting a deadline or before the expiry of the deadline the defect at its own expense to remove (self-execution the defect) and demand compensation for the costs from the seller afterwards. Whether the buyer in such a case can at least demand reimbursement of saved expenses from the seller, is highly disputed. According to Lorenz NJW 2005, 1321, hardly any problem of the new law of obligations has caused such controversial discussions as that of the consequences of a "hasty" self-execution of the supplementary performance by the buyer. In the following judgment, the BGH has made a decision on this issue.

The problem of self-execution does not only exist in the case of a purchase contract, but also in other types of contracts. It is regulated more closely with the rent (§ 536 a II BGB). In the case of the contract for work and services (§§ 634 no. 2, 637 BGB). It also arises with § 1004 BGB. Cf. Herresthal/Riehm NJW 2005, 1459 et seq.

Self-performance by repair without setting a deadline for subsequent performance. Claims for rescission, reduction and damages, §§ 437 no. 2 and 3 BGB. Reimbursement of expenses according to § 326 II 2 BGB directly or analogously. Final regulation of §§ 437 ff. BGB. Priority of subsequent performance

BGH Judgment of 23. 2. 2005 (VIII ZR 100/04) NJW 2005, 1348

Cf. Lorenz NJW 2005, 1321; Herresthal/Riehm NJW 2005, 1457; Bydlinski ZGS 2004, 129; Dauner-Lieb ZGS 2005, 169; Katzenstein ZGS 2005, Tonner/Wiese BB 2005, 903.84; JuS 2005, 749.

Case (replacement engine not from seller)

K bought a new car of the brand Skoda for the price of 6.700 €. The contract was significantly mediated by the car dealer M, but the contractual partner of K on the seller's side was V. At the same time as the purchase, K concluded a "warranty agreement" with M. Seven months after handover, the vehicle suffered serious engine damage, the cause of which was initially disputed among the parties involved. K turned to M for repair. To Skoda Germany GmbH. Both refused to accept responsibility for the damage on the grounds that the service booklet did not contain the prescribed entries u. A. On the performance of the handover inspection. K had the old engine removed and a new one installed at an authorized Skoda dealer. It turned out that the damage was due to a defect in the original engine. K demands the costs in the amount of 2.506 € replaced by V, claiming reduction, damages and expenses saved by V. Rightly ?

I. A claim could arise from the fact that K's declaration that the old engine was defective was not valid Mitigation to a claim for repayment under §§ 437 no. 2, 441 I 1, II, IV, 346 I German Civil Code leads.

1. A purchase contract was concluded between K. V came into existence. The delivered car was defective i. S. Of § 434 I 2 no. 2, because it was not suitable for ordinary use due to the defective engine.

2. A reduction right has the buyer after § 441 I 1 however only instead of a resignation right.

A) With the regulation of the resignation § 437 Nr. 2 basically refers to § 323 I. According to this, the creditor (buyer) must have unsuccessfully set the debtor (seller) a reasonable deadline for performance or subsequent performance. This also applies to reduction. BGH S. 1348 under a): In order to be able to reduce the purchase price, the purchaser must, acc. §§ 437 no. 2, 323 I BGB must first bring about the prerequisites for rescission, i.E. As a rule set a deadline… This prerequisite is not fulfilled because the plaintiff is not entitled to rescind the contract. The defendant. Did not set a deadline for the repair of the engine damage.

B) The setting of a time limit is dispensable according to § 323 II Nr. 1, if the debtor seriously and finally refuses performance. Performance here is the repair of the car as subsequent performance (§§ 437 No. 1, 439). The repair was refused by M and S-GmbH. However, these were not contractual partners of K. BGH S. 1348/9 under aa): The rejection of a duty of replacement with regard to the "warranty agreement…" Had no effect on the defendant's. The BGH ruled that the claim had no legal consequences because it related to a legal relationship that was independent of the purchase contract and in which the defendant had no interest. Was not involved. V had not refused a repair.

C) The setting of a deadline according to § 326 V is dispensable, if the self-performance of the repair would have led to the impossibility of the subsequent performance. However, the latter can remain open. Because according to §§ 326 V, 323 VI the resignation is excluded, if the buyer for the reason, which would entitle him to the resignation, alone or far predominantly responsible would be. However, K alone is responsible for the self-execution.

D) The requirement to set a deadline according to § 440 BGB does not apply either.

K therefore has no claim from reduction. At the same time, it is clear that K cannot demand reimbursement of the costs incurred by him in such a way that he can Rescission from the contract of sale and demand the purchase price back (apart from the fact that he would then have to return the car).

II. K could file a Claim for damages according to §§ 437 no. 3, 280 I, III, 281 I BGB have. BGH S. 1348 under a): Also this requirement presupposes that the buyer set to the salesman unsuccessfully an appropriate period for the Nacherfüllung (§ 439 BGB). For the claim for damages instead of performance, this is expressly regulated in § 281 I 1 BGB (German Civil Code). Since K did not set a deadline for V, this claim also does not apply.

III. According to the wording could § 439 II BGB give the K a claim for the costs incurred for the rectification of the defect. However, this must be expenditure "for the purpose of supplementary performance", whereby the supplementary performance can only be carried out by the seller. In the present case, the seller did not carry out subsequent performance, but the buyer had the defects remedied elsewhere.

IV. Central basis of claim in this case is a Claim to subsequent performance costs saved by the seller from § 326 II 2 (direct or analogous) i. V. With §§ 326 IV, 346 BGB.

1. According to §§ 326 IV, 346 the creditor can demand the return of the consideration, as far as it was not owed according to this provision. Thereafter, the buyer may demand the return of the purchase price to the extent that the seller's claim thereon has lapsed. According to § 326 I 1, the seller's claim to the purchase price lapses if his own performance has become impossible (§ 275). The repair carried out by the buyer could have made it impossible for the seller to fulfill his obligation to deliver a defect-free item (§ 433 I 2) in the form of subsequent performance (§ 439) (impossibility due to achievement of purpose: Lorenz NJW 2005, 1322 re. Sp.; Herresthal/Riehm NJW 2005, 1457; Medicus, Civil Law, 20. Aufl., Rdnr. 159). However, the resulting partial lapse of the purchase price claim could be opposed by the grounds for exclusion of § 326 I 2 as well as § 326 II 1, whereby § 326 II 1 would be applicable because the buyer would be responsible for the impossibility due to his self-performance. Then the seller would keep his claim, but would have to take into account according to § 326 II 2 what he has saved by the omission of his obligation to perform. This could be the expenses saved by omission of the obligation of subsequent performance, which he has to reimburse to the buyer.

2. Whether such a claim exists is the subject of the dispute, to which the BGH referred to S. 1349 under 2 as follows.

A) First of all, the BGH presents the opinion already outlined under 1 above: According to a view represented in the literature, the seller must allow the expenses necessary for the purpose of subsequent performance (§ 439 II BGB), which he saves by the buyer's self-execution of the defect removal, to be credited against his purchase price claim. In this respect

Either the direct application of § 326 II 2 BGB is advocated (Lorenz ZGS 2003, 398; Ebert NJW 2004, 1761 [1763]…), or this norm is declared to be applicable accordingly (Faust, in: Bamberger/Roth BGB § 437 Rdnr. 33; … Palandt/Putzo BGB, 64. Aufl., § 437 Rdnr. 4a…).

The reason given is that the subsequent performance owed by the seller becomes impossible as a result of the buyer carrying out the rectification of defects himself (§ 275 I BGB). The seller retains gem. § 326 I 2 BGB his purchase price claim. According to § 326 II 2 BGB – which is applicable because the buyer as creditor is responsible for the impossibility of subsequent performance, § 362 II 1 BGB – the seller must, however, take into account what he saves as a result of the exemption from performance; if the purchase price has already been paid, the buyer's claim for reimbursement arises from § 326 IV BGB i. V. With §§ 346 ff. BGB (in detail Lorenz NJW 2003, 1418). Lorenz defends this view again in NJW 2005, 1321 ff.

B) This is rejected by the opposing opinion (Nachw. At BGH S. 1349 under b, u. A. On Westermann, in: MünchKomm, 4. Aufl., § 437 Rdnr. 9 i. V. With § 439 Rdnr. 10; Dötsch MDR 2004, 975, 977 et seq.; Dauner-Lieb/Arnold ZGS 2005, 10). In particular, it is doubted that impossibility of the seller's performance has occurred, which would also be a prerequisite for the analogous application of § 326 II 2 (Erman/Grunewald, BGB, 11. Aufl., § 437 Rdnr. 3; Oechsler NJW 2004, 1826: Self-performance by the buyer does not lead to impossibility according to § 326 BGB, but to the creation of the condition owed according to § 433 I 2 BGB).

C) The Federal Court of Justice (BGH) leaves open the question, which is decisive according to the above considerations, whether self-performance by the buyer leads to the (partial) impossibility of the performance to be rendered by the seller (crit. Lorenz NJW 2005, 1323). §§ 437 ff. Contain a conclusive regulation. In this case do not provide for a claim. Contains a conclusive regulation and in this case does not provide for a claim. For this it gives on S. 1349/1350 under aa. Bb a double justification. 1349/1350 under aa. Bb a double reasoning. The law grants the buyer in contrast to the tenant (§ 536a II BGB). With regard to the purchaser in the case of a contract for work and services (§ 634 no. 2, 637 BGB) no claim for reimbursement of expenses in case of self-remedy of defects. The Legislator has in the case of the new regulation of the purchaser's rights in respect of defects by the law of obligations modernization law deliberately refrained from a right of self-execution at the expense of the seller .. For this reason, there is also no unplanned regulatory gap that would be a prerequisite for an analogous application of § 326 II 2 BGB.

However, the BGH recognizes that the supporters of the view above a) do not want to grant the buyer a claim to the self-execution expenses oriented to the costs of the buyer, but only a claim to the skimming of the expenses saved by the seller (on this Herresthal/Riehm NJW 2005, 1458). However, he does not see any essential difference in this: In any case, it is a question of costs of the elimination of defects carried out by the buyer… If one would allow the buyer according to. If the buyer were to be entitled to the expenses saved by the seller under § 326 II 2 BGB, the result would be to grant the buyer a right to remedy defects himself at the expense of the seller… This would be contrary to the intention of the legislator, who deliberately refrained from creating a right of the buyer to remedy defects himself at the expense of the seller along the lines of the rental contract and the contract for work and services.

Bb) In addition, the right to reimbursement of saved costs of defect rectification would be opposed to the Principle of the priority of the subsequent performance violated. § Sec. 437 BGB lists the rights and claims to which the buyer is entitled in the event of delivery of an item with a defect of title or material defect. A fundamental priority of the supplementary performance follows for the rights of rescission and reduction (§ 437 No. 2) as well as for the buyer's claims for damages in lieu of performance and for reimbursement of futile expenses from the circumstance that these rights of the buyer regularly presuppose the unsuccessful expiry of a deadline set to the seller for subsequent performance (cf. Only Westermann, in: MünchKomm, § 437 Rdnr. 4…). From the seller's point of view, the priority of the supplementary performance is the same as the legal priority of the remedy as a right of subsequent performance or. "Right to second tender" which serves his protection insofar as he can avert the assertion of the aforementioned buyer's rights by means of supplementary performance… The statutory priority of supplementary performance or. The "right to second tender" would be undermined if the buyer were to bear the costs of remedying defects (by the seller) in accordance with. § 326 II 2 BGB without prior setting of a time limit could demand all or part of this..

Also, the right of subsequent performance enables the seller to examine the sold item to determine whether the alleged defect exists and whether it was already present at the time of the transfer of risk, on what cause it is based, as well as whether and in what way it can be eliminated (cf. § 439 III BGB), and for this purpose if necessary. To secure evidence. The seller loses this possibility of an investigation and preservation of evidence if, after the repair has been carried out by the buyer in the context of the assertion of a claim for reimbursement in accordance with. § 362 II 2 BGB is presented with a "fait accompli". This would unjustifiably worsen his defense possibilities…

Finally, the BGH (S. 1350/1 under d) still the reproach back, by the exclusion of a claim the salesman is favoured unjustly. The fact that the buyer who remedies a defect himself without having first given the seller the opportunity to remedy the defect cannot in principle demand reimbursement of the costs of remedying the defect from the seller is merely a consequence of the fact that he has not fulfilled the statutory requirements of the warranty set out in Sections 437 et seq. Of the German Civil Code. BGB has not complied with the defect rights regulated by the BGB.

Consequently, the basis of claim for reimbursement of subsequent performance costs saved by the seller (§§ 326 II 2, IV, 346) is not applicable. K cannot derive a claim from this.

V. In some cases, claims based on management without a mandate or unjust enrichment were affirmed instead (overview in Herresthal/Riehm NJW 2005, 1457 Fn. 4 – 7 ). However, even such bases for claims are not covered by the final regulation of §§ 437 ff. Displaced (cf. BGH S. 1350 under c).

K therefore has no claim against V.

Summary

– BGH LS 1: Both the right of the buyer, gem. §§ 437 no. 2, 441 BGB to reduce the purchase price, as well as the claim for damages instead of the performance acc. §§ 437 no. 3, 280, 281 BGB require, if one of the legally regulated exceptions does not apply, that the buyer has unsuccessfully set the seller a reasonable deadline for subsequent performance. – It is highly controversial whether the buyer who has the defect remedied without the expiry of a set deadline can use the seller to reimburse the expenses saved by the latter. In some cases a claim under § 326 II 2 (direct or analogous) i. V. With §§ 326 IV, 346 ff. Affirmed (z. B. By Lorenz). – According to the BGH, this basis for a claim is already inapplicable because §§ 437 ff. Contain a conclusive provision. This follows from the decision of the legislator to deliberately not grant the purchaser a right of self-remedy in sales law, in contrast to rental law and the law on contracts for work and services. A claim for reimbursement of saved costs would also run counter to the principle of priority of subsequent performance. The buyer must therefore bear the costs in such a case itself. BGH LS 2: If the buyer eliminates the defect himself, without having previously set the seller a necessary deadline for subsequent performance, he can also not claim reimbursement of the defect in accordance with 1350/1. § 326 II 2, IV BGB (analogous) demand the crediting of the expenses saved by the seller for the elimination of the defect against the purchase price or demand the return of the purchase price already paid in this amount.

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