Withdrawal from the purchase contract if diesel defeat-device is installed
Deactivation software in diesel vehicles: Contact your lawyer now!
A recently published decision of the Higher Regional Court of Cologne (AZ. 27 U 13/17) strengthens the rights of car owners. In the facts to be negotiated, a car buyer sued a car dealer in Cologne for withdrawal from the purchase contract for a VW Eos 2.0 TDI with the EA 189 engine with defeat-device.
After gaining knowledge of the installation of the defeat software in his diesel vehicle in November 2015, the car buyer initially demanded the subsequent delivery of an identical vehicle without the defeat software.
For this he set a deadline of 3 ½ weeks.
The dealership refused to take back the car, pointing out that a recall campaign is planned for early 2016, in which the defect will then be remedied.
The car buyer then declared his withdrawal from the purchase contract and demanded the rescission of the contract.
The software update announced by the car dealer has actually not been available until September 2016.
The OLG Cologne confirmed the first instance in its judgement. What is exciting here are the considerations in the reasons for the judgement.
Defeat-device in diesel vehicles is a shortcoming
The court considered the installation of the software alone to be sufficient to determine that the car was not in the usual condition. The automatic defeat is therefore a deficiency.
The Higher Regional Court further states that the car buyer was entitled to assume that the manufacturer of the vehicle would comply with the law.
For this reason, the car buyer could effectively withdraw from the contract.
It would have been unreasonable to expect the car buyer to wait any longer of uncertain duration. Neither the prospects of success nor the approval of the announced software update were certain at the time of the resignation. This meant that the registration relevant to the car buyer was still uncertain. Moreover, due to the pending situation, it was hardly possible to resell the vehicle. The time value was in question.
That the deadline set by the car buyer of only 3 ½ weeks was possibly too short is harmless here: In principle, a deadline measured too short sets an appropriate deadline in motion.
The rescission was also not excluded due to the insignificance of the defect.
Although the software update should only mean a small expenditure of about 100.00 €, however, a comprehensive weighing of interests gives the right in favor of the car buyer.
The software update was not available at the time of the withdrawal, nor did the Federal Motor Transport Authority have the opportunity to check the update.
In view of the very considerable uncertainty at the time of the resignation, it could therefore not be assumed that there was only an insignificant quality defect.
No appeal in the Diesel scandal
The Higher Regional Court of Cologne has not allowed the appeal; all that remains is an appeal against the non-admission of the appeal.
For the consumers affected by the diesel scandal, also here in Lüneburg, this judgement offers new chances: the recognition of the defeat-device as not insignificant lack can bring in the correct time window the so far unsuccessful attempts to get rid of the diesel again, nevertheless still to the goal.
However, legal advice should be obtained from an expert in contract law.
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