When defects appear in a vehicle after a car purchase, the buyer and seller often argue over how often and to what extent the buyer must accept repairs. Car buyers often do not feel like sticking to the purchase contract after unsuccessful repair attempts. Car salesmen, on the other hand, do not want to take a vehicle back if possible.

A buyer buys a used car with low mileage. Within the first six months after handover of the car, a defect occurs in the clutch. The buyer complains about this. Gives the car to the seller for repair. The buyer gets his car back after one week. Two weeks later the engine loses oil. Can the buyer now withdraw from the purchase contract?

This problem is known among legal experts as "Failure of the repair" treats.

What does failure to rework mean?

According to the commercial law regulations of the BGB (§§ 433 BGB ff.), there is a so-called priority of subsequent performance. The seller must therefore normally first be given the opportunity to remedy the defect by means of subsequent performance. For more on this, see my post on the priority of subsequent performance when buying a car.

A repair is a subsequent performance in the form of the Rectification. A resignation of the sales contract is thus regularly impossible, if the salesman was not given before opportunity to improve the lack.

But how often may a seller even attempt to repair the vehicle? The BGB contains a so-called legal presumption about this in § 440 sentence 2 BGB:

"A rectification is considered to have failed after the unsuccessful second attempt, unless the nature of the item or defect or other circumstances indicate otherwise in particular."

This does not mean, however, that the seller is always entitled to two attempts at rework. It is only a legal presumption. In extreme cases, rescission may also be justified after an unsuccessful repair attempt. Likewise, in certain cases, a seller may be granted more than two repair attempts. For example, the BGH stated in its verdict of 15.11.2006 (Az. VIII ZR 166/06) pointed out the following:

"More than two attempts at rectification are therefore possible, for example, in the case of particular (technical) complexity of the item, defects that are difficult to rectify or unusually adverse circumstances in previous attempts at rectification (Staudinger/Matusche-Beckmann, BGB, 2004, § 440 Rdnr. 18; Schmidt in Prütting/Wegen/Weinreich, BGB, 2006, § 440 Rdnr. 10; Münch-Komm/Westermann, BGB, 4. Aufl., § 440 Rdnr. 11; Faust in Beck'scher Online Comm. BGB, status 1.8.2006, § 440 Rdnr. 32)."

So § 440 sentence 2 BGB is only a guideline that applies in "standard cases".

Counts each defect individually?

In this context, it's interesting to ask whether the number of repair attempts has to refer to the same defect. The Federal Court of Justice (BGH) has clarified in this regard in connection with a motorhome purchase that the seller must be given the opportunity to rectify each individual defect (BGH, judgment of 29.06.2011 – VIII ZR 202/10). In the case decided, the motor home in dispute was in the defendant's workshop a total of four times for the purpose of rectification work, but because of various defects. The BGH denied a right of rescission among other things with the following reasoning:

"However, according to the findings of the Court of Appeals, a failure of the rectification can only be considered with regard to the sluggish entrance door, because in this respect two unsuccessful attempts at rectification have already taken place; this does not apply to the other defects assumed by the Court of Appeals. The fact that the defendant has already carried out rectification work because of various other defects does not lead, contrary to the opinion of the appeal opposition, to the fact that the plaintiffs would no longer be reasonable to expect the defendant to carry out rectification work because of the other defects still in dispute, because the buyer has to give the salesman in principle because of each individual lack opportunity to the rework (cf. Reinking/Eggert, The Car Purchase, 10. Aufl., Rn. 477)."

Thus, according to BGH case law, each defect must be legally considered individually. Of course, this can be difficult to judge in individual cases, so that if necessary. An expert opinion must be consulted.

When is a rectification attempt completed?

Equally relevant is the question of when an attempt at rectification is even complete in a legal sense. Does every appointment at the dealership count? Or does it already represent an unsuccessful repair attempt, for example, if the seller issues an interim message that you still have to order another part?

There is (unfortunately) no blanket answer to this question. In the end, it always depends on the circumstances of the individual case, especially how the buyer and seller behaved. Reinking/Eggert point out that termination of a repair attempt presupposes, in addition to the acceptance of the vehicle by the buyer, that the defect complained of is declared to have been eliminated without restriction (Reinking/Eggert, Der Autokauf, 13. Edition 2016, Rnr. 977).

The courts sometimes judge quite buyer-friendly in this context. The background to this is that the buyer usually has no idea of what exactly happens after the defective vehicle is handed over to the workshop. Thus z.B. The Karlsruhe Higher Regional Court (OLG) already considered an initial examination to be an attempt at rectification (OLG Karlsruhe, judgment of 14 December 2006).05.2009 – 4 U 148/07):

"The defendant, after the plaintiff indisputably complained of water ingress and a "gurgle" in the rear area, had two opportunities to rectify the vehicle. That it merely unsuccessfully investigated the first rebuke. Even the second time did not find the water entry point. Although she … Drove the car through the car wash, sprinkled it with a hose and removed the rear trim, does not change this assessment. The first examination of the vehicle is also to be regarded as a rectification attempt."

By the way, it is not decisive what the seller or a workshop commissioned by him have actually done. A seller cannot plead that "nothing has been done yet" during a workshop visit, cf. LG Wuppertal, judgment of 16.11.2010 – 16 O 134/08:

"In order to be able to assume a failure of attempts at rectification within the meaning of § 440 BGB, it is not necessary for the seller or entrepreneur entrusted with this to engage in extensive activities beforehand. An unsuccessful attempt to remedy a defect within the meaning of Section 440 sentence 2 of the German Civil Code (BGB) also exists if the seller or entrepreneur does practically nothing before returning the object of purchase with the defect to the buyer again."

Failure to rectify – Who bears the burden of proof?

In principle, the purchaser must show and prove in court that the rectification failed. The BGH formulates it as follows (BGH, judgment of 9.3.2011 – VIII ZR 266/09):

"The purchaser of a thing satisfies his burden of proving that the remedy has failed by showing that the defect symptom of which he complains continues to occur. This is only different if the reappearance of the defect symptom is possibly due to improper handling of the purchased item after its renewed acceptance by the buyer (following the Senate ruling of 11. February 2009 – VIII ZR 274/07, NJW 2009, 1341)."

The buyer must also prove that both repair attempts were unsuccessful. Passes after the presentation of the salesman z.B. The possibility that the reappearance of the defect is due to improper handling of the vehicle by the buyer after it has been returned to him, this is at the expense of the buyer (cf. BGH, judgment of 11.

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