Recht vertieft

News: Law of Obligations: No fictitious & concrete damage compensation in case of a partial repair necessary to establish road safety

written and translated by Ali Tahir Sen


Also in the case of a partial repair necessary to establish road safety, the combination of fictitious and concrete damage calculation violates the “mixing prohibition” (ger. “Ver­mischungsverbot”). 


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This article was translated from German to English. Please excuse any errors that may have occurred and feel free to report them via the contact page.
Click on quotes to expand them in the original language.


The reimbursement of fictitious damages within the scope of §§ 249 BGB is controversial. Thus, the V. and VI. senate of the BGH, responsible for real estate law, neighbor law, residential property law as well as tort law, affirm the possibility of a fictitious damage calculation, whereas the VII. senate, responsible for contracts of work and services, does not (BGH, judgement of 22.02.2018 – VII ZR 46/17). It is undisputed and stipulated by the legislator in § 249 II 2 BGB that in the context of the fictitious damage calculation, the sales tax not incurred is not refundable. Already in 2021, the BGH confirmed that the damaged party could “fall back” to the concrete damage calculation after the choice of the fictitious damage calculation, but a combination is not possible (BGH, judgment of 12.10.2021 – VI ZR 513/19).

The question of whether fiktive and concrete damage calculations can be combined in the case of repairs necessary to restore road safety and whether the (partially incurred) sales tax can be reimbursed has not yet been answered. On April 5, 2022 (VI ZR 7/21), the BGH decided that this was not the case, citing the “prohibition of commingling”:

[…] Since the plaintiff has chosen the path of fictitious damage calculation and has not switched to a concrete calculation of her damage on the basis of the repair carried out, she cannot demand compensation for the sales tax incurred within the scope of the partial repair. A combination of fictitious and concrete calculation of damages is not permissible in this respect.

BGH, 05.04.2022 – VI ZR 7/21 No. 12

[…] This is not only to prevent the injured party from selecting the elements of the respective calculation method that are advantageous to him (“cherry picking”, ger. “Rosinenpicken”) in disregard of the prohibition of enrichment under damage law, but also to take into account the different bases of the respective settlement and to ensure its internal consistency (Senate judgment of October 12, 2021 – VI ZR 513/19, NJW 2022, 543 Nr. 18 with further references).

BGH, 05.04.2022 – VI ZR 7/21 No. 14

[…] The person injured in a traffic accident is [also] not disadvantaged by the prohibition of commingling (“Ver­mischungs­­verbot”). Even if he has initially settled his vehicle damage fictitiously, he can later – within the frame­work of the legal requirements for such a damage settlement and the statute of limitations – in principle switch to the concrete damage settlement and demand compensation for the actual costs incurred (Senate judgment of October 12, 2021 – VI ZR 513/19, NJW 2022, 543 Nr. 20 with further references).

BGH, 05.04.2022 – VI ZR 7/21 No. 16

The BGH then addresses the alleged contra­diction between the case law and the purpose of Section 249 II 2 of the BGB, as cited by the appeal, on the basis of the main features of previous case law and the legislative docu­ments with regard to the reimbursement of sales tax.

By the statutory provision, the legislator did not intend to change the possibility of the injured party to demand the amount of money required for the restoration always and insofar as it was actually incurred for the restoration of the original condition (see BT-Drs. 14/7752, 13 f., 23 f.). However, this possibility is not taken away from the injured party by the prohibition of commingling. As stated above, the aggrieved party is at liberty to settle its damage in concrete terms or, if it has initially settled it fictitiously, to switch – within the framework of the legal require­ments for such settlement of damage and the statute of limitations – to a concrete calculation on the basis of the restitution measure actually occasioned (cf. Senate judgment of October 12, 2021 – VI ZR 513/19, NJW 2022, 543 Nr.. 25 with further references). Only then is the sales tax actually incurred by the aggrieved party “on the path chosen by him” (BT-Drs. 14/7752 p. 23 f.) of the damage repair and settlement within the meaning of § 249 II 2 BGB.

BGH, 05.04.2022 – VI ZR 7/21 No. 20

Finally, it addresses the case – not previously decided by the BGH – in which a partial repair is necessary to restore road safety and first addresses the possibility, opened up by Senate case law, of compensating fictitious repair costs in excess of the replacement cost up to the limit of the replacement value. This protects the integrity interest (use of the vehicle) and the freedom of disposition of the injured party and enables fictitious damage settlement.

[…] However, this does not allow the injured party to additionally secure the advantages of the concrete settlement by mixing fictitious and concrete settlement. In this case, too, the value added tax does not accrue on the fictitious repair – on which the calculation of the damage is based according to the decision of the injured party – but on the concrete partial repair – which was not settled according to his decision. In this respect, the injured party may not combine individual elements of one settlement with the other, but must opt for one settlement type – fictitious or concrete. Otherwise, he would violate the prohibition of mixing and matching.

BGH, 05.04.2022 – VI ZR 7/21 No. 22

As a result, the BGH denies a claim of the plaintiff (= injured party) for compensation of the sales tax incurred on the partial repair.


written and translated by Ali Tahir Sen


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