News: Property law – No good faith acquisition of a stolen Lamborghini on a gas station parking lot
written and translated by Ali Tahir Sen
The acquisition in good faith may be precluded by gross negligence on the acquirer’s part. In the case of the acquisition of a (luxury) motor vehicle, bad faith on the acquirer’s part may arise despite the presentation of a motor vehicle certificate if special circumstances, such as the existence of a street sale or the absence of a proxy or, in the case of a luxury car, the service booklet, were bound to arouse his suspicion and he disregards them.
OLG Oldenburg, judgment of 27.03.2023 – 9 U 52/22
Defendant B came across an advertisement on an internet platform by the brothers I, who claimed to be offering the vehicle for sale on behalf of E. He inspected the vehicle on the 13th of August 2019 in the parking lot of a gambling house and then decided to purchase the vehicle. He wanted to provide a part of the purchase price by trade-in of his own motor vehicle. The brothers I immediately agreed to this and it was agreed to hand over the vehicles on the 15th of August 2019 at the place of residence of the B, as the brothers I still needed it for a wedding trip of a friend. However, at the request of I, the meeting took place on the same day “in the middle” on the premises of a gas station. Stating that they were stuck in a traffic jam and then got into a police checkpoint, I did not reach the meeting place until 11 pm. After a test drive with both vehicles, the ( uncompleted ) purchase contract was signed at around 1 o’clock. It did not contain any information on the number of keys handed over, on whether service and maintenance work had been carried out without any gaps, or on whether the service booklet was provided.
A registration of the vehicle in the name of B failed due to an ongoing manhunt. The original owner was the plaintiff K, who lived in Spain. The plaintiff had rented the vehicle to D, who in turn had rented the vehicle to E. E did not return the vehicle at the end of the one-week rental period, whereupon the Spanish police put it on the European wanted list. Nevertheless, it was able to be registered in Germany on 01.08.2019 with a 30-day registration.
Before the Osnabrück Regional Court, K demanded surrender of the vehicle. In its judgment of July 8, 2022, the Regional Court dismissed the action and established that B had acquired ownership in good faith. In his appeal to the Higher Regional Court of Oldenburg, K challenged the judgment with the same claim and demanded the return of the vehicle. The appeal was successful.
K could be entitled to a claim for restitution under § 985 of the German Civil Code (BGB). The examination of a claim for restitution according to § 985 BGB can be performed according to the following scheme:
- Claimant K as owner
- possession of Claimant B
- No right to possession of the B according to § 986 BGB
- No justified defenses of the B
The main problem here is whether K continues to be the owner or whether B has acquired ownership in good faith in accordance with §§ 929 1, 932 I, II BGB.
Pursuant to § 932 BGB, the acquirer may acquire ownership by agreement and transfer of direct possession even if the transferor is not the owner, unless at the time of transfer of ownership he is not in good faith with regard to the transferor’s ownership position. In other words, B became owner by reaching an agreement with E (represented by the brothers I) and transferring the vehicle, provided he was in good faith in doing so. According to § 932 II BGB, the acquirer is not in good faith if he knows or is unaware due to gross negligence that the property does not belong to the transferor.
Although B was not aware that E was not the owner of the vehicle, he could have been unaware of this due to gross negligence. One of the minimum requirements for the acquisition of a motor vehicle in good faith is the presentation of the vehicle registration document – as was the case here.
Even if the transferor is in possession of the vehicle and the letter, the transferee may nevertheless be in bad faith if special circumstances had to arouse his suspicion and he ignores them. On the other hand, the purchaser does not have a general duty to investigate […].
OLG Oldenburg, judgement of 27.03.2023 – 9 U 52/22 No. 31.
In the present case, there were several circumstances that B disregarded, in particular,
- that the brothers I have not presented a proxy,
- that the purchased item is a luxury vehicle from Spain that was registered in Germany only a few days ago with a short-term license plate,
- that the brothers I immediately and without consulting the (alleged) owner agreed to the trade-in of B’s vehicle,
- that the first meeting took place in the parking lot of a gambling house and the conclusion of the contract as well as the handover took place in the parking lot of a gas station, thus a street sale is present
- that the brothers I do not hand over the vehicle directly, but still use it for a wedding, thus for private purposes,
- that the contract was not filled in completely,
Therefore, the OLG Oldenburg states:
An overall consideration of the aforementioned circumstances revealed numerous conspicuous features for the defendant at the time of the acquisition which indicated that the vehicle had been illegally imported into Germany and that [E], who was named as the seller in the purchase agreement, was neither the owner nor authorized to dispose of the vehicle. To the conviction of the Senate, these suspicious facts are not invalidated by the fact that the vehicle was offered on the Internet at mobile.de, German registration certificates I and II and a DEKRA report existed, the defendant already knew the brothers I from a used car sale of his brother, a copy of the front of the identity card of the alleged owner was presented to him and, according to his own statements, he was also given two keys with which he could at least open the vehicle mechanically.
OLG Oldenburg, judgement of 27.03.2023 – 9 U 52/22 No. 44.
The OLG Oldenburg denies that B acquired ownership in good faith, so that K continues to be the possessor of the vehicle. B is the direct holder of the vehicle and, in the opinion of the OLG Oldenburg, cannot invoke a right of possession derived from K. The OLG Oldenburg therefore finds that K has a claim for restitution of the vehicle under § 985 BGB. Therefore, K has a claim for surrender of the vehicle under § 985 BGB and the appeal is successful.
written and translated by Ali Tahir Sen
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