Recht vertieft

News: Law of Obligations – Invalidity of General Terms and Conditions in case of a reduction of the limitation period to one year in case of health damages

written and translated by Ali Tahir Sen

General terms and conditions which bring forward the “period of limitation for material defects” do not stand up to a review of their content in accordance with §§ 307 et seq. BGB (German Civil Code) if they exclude or limit liability for bodily injury or health damage caused by negligence or liability for other damage caused by simple negligence.


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.

News: BGH - Nichtigkeit Allgemeiner Geschäftsbedingungen bei Verjährungsfristverkürzung


This video is subtitled in English!
The manually created German subtitle was translated to English by YouTube.

In its judgment of March 24, 2022 (III ZR 263/20), the Federal Court of Justice (BGH) assessed the admissibility of general terms and conditions according to which the limitation period was brought forward in deviation from § 438 II BGB before the delivery of the vehicle. The plaintiff is the owner of a second-hand diesel motor vehicle, which he acquired from the defendant in January 2016 and which was handed over to him on January 14, 2016. The purchase agreement concluded on this occasion contained the following clause:

In the case of demonstration and company vehicles, the limitation period for material defects shall commence – in amendment of the provision contained in Section VII 1 of the Terms and Conditions for the Sale of New Vehicles – upon first registration as per the entry in the vehicle registration certificate. In any case, however, a limitation period of one year shall remain in effect.

According to the vehicle registration document, the vehicle was registered for the first time on May 07, 2015. A diesel engine of the type OM 642 was installed in the vehicle, in which due to a temperature-dependent control of the emission control system (“thermal window”, ger. “Thermofenster”), the exhaust gas recirculation is reduced at lower outside temperatures. In other words, the plaintiff’s vehicle “was included in the diesel scandal.”

By letter dated January 5, 2018, the plaintiff complained about the use of the thermal window as a defect and requested the defendant to acknowledge a claim for subsequent delivery of a defect-free replacement vehicle and finally – after a negative response from the defendant – he declared the withdrawal from the purchase contract on January 12, 2018.

In his claim, the plaintiff is seeking – insofar as relevant here – repayment of the purchase price reduced by compen­sation for use in the total amount of 48,853.33 Euro and interest concurrently with the handover and transfer of ownership of the vehicle. Following dismissal of the action by the Regional Court and rejection of the appeal by the Higher Regional Court, the appeal to the BGH was successful.

After affirming the admission of the appeal, the BGH turned its attention to a claim for damages against the defendant arising from

  • §§ 826, 31 BGB
  • § 823 II BGB in conjunction with § 6 I, § 27 I EG-FGV or Art. 5 VO (EG) Nr. 715/2007 or
  • § 823 II BGB in conjunction with § 263 I StGB, § 31 BGB due to the placing on the market of the vehicle with a thermal window

and denied them – as the previous instance had done – following its established case law.

However, contrary to the decision of the Higher Regional Court, the BGH affirmed the plaintiff’s claim for rescission of the purchase contract pursuant to §§ 437 No. 2 Alt. 1, 434 I, 440, 323 I, 346, 348 BGB.

The clause (reproduced above) is a general terms and conditions of the defendant on the limitation of liability for material defects, which are subject to a content review under §§ 307 et seq. BGB are accessible. With the assumption, with the plaintiff the sales contract as consumers closed, the clause prohibitions of the § 309 BGB find direct application and thus also § 309 No. 7a & b BGB, according to which in general trading conditions the being to blame for body and health damage not, for other damage only in the case of simple negligence to be excluded or limited can. Regarding the general terms and conditions of the defendant, the BGH states:

According to the facts relevant to the appeal proceedings, the above-described clause on the limitation period violates these requirements. Accordingly, it has the effect of bringing forward the commencement of the limitation period for all claims of the purchaser based on material defects in used vehicles in deviation from the statutory provision in § 438 II BGB, according to which the limitation period commences upon delivery of the vehicle, and in this way shortens the statutory limitation period of two years pursuant to § 438 I No. 3 BGB to up to one year. This is not precluded by the fact that the wording of the clause refers to the “running of the limitation period for material defects”. It is to be interpreted – at least in accordance with § 305c II BGB – in such a way that the limitation of claims due to material defects is not only meant in the narrower sense and that the limitation of liability in terms of time also covers (consequential) damages from injury to life, body or health (cf. BGH, judgment of May 29, 2013, loc. cit., Nr. 16 f). The court of appeal also understood the clause in this sense. It did not find any provisions restricting its scope of application.

BGH, 24.03.2022 – III ZR 263/20 No. 41

As a result of the limitation of liability in violation of the prohibition, this is invalid and the statutory provision (here: § 438 I No. 3, II BGB) applies in accordance with § 306 II BGB. In the absence of a finding by the court of appeal as to whether the plaintiff’s letter of rescission was received by the defendant before the expiry of the two-year limitation period, the BGH reverses the contested judgment with regard to a claim for rescission of the purchase contract pursuant to §§ 437 No. 2 Alt. 1, 434 I, 440, 323 I, 346, 348 BGB and remits the case to the court of appeal for a new hearing and decision pursuant to §§ 562 I, 563 I 1 ZPO.

written and translated by Ali Tahir Sen

You can find related articles via the tags:

0 0 votes
Article Rating
Notify of
0 Kommentare
Inline Feedbacks
View all comments
Would love your thoughts, please comment.x
GDPR Cookie Consent with Real Cookie Banner