Exhaust gas fraud judgment: the right to replace the vehicle is statute-barred

Anyone wishing to replace a new vehicle affected by exhaust gas fraud with a later model replacement vehicle must file their claim within two years of entering into the contract. Otherwise he was unlucky after a decision of the Federal Court of Justice (BGH). The judges set a clear time limit for subsequent surrender, which had not previously been the case. The buyer’s lawyer spoke of “shock” after the ruling. (Az. VIII ZR 254/20 etc.)

Many buyers have asked to replace their older Volkswagen cars. The original models were no longer produced by that time. Then dealers will get crazy cars and will have to supply brand new cars without compensation, explained moderator, Karen Melger. This does not mean a fair balancing of the interests of both sides. A Volkswagen spokesperson said before the hearing that the number of cases involved was in the mid-double-digit range.

Lower courts took a different decision: sometimes they gave customers the right to exchange their new car, and in case of doubts, a newer model. In other cases, they considered a software update for 100 euros more appropriate and sufficient. None of the sellers claimed any statute of limitations. Depending on the case, the BGH either rejected the revisions or confirmed the judgments. The procedure must also be renegotiated.

Judge Melger, who presided over her last trial before retiring, initially said that from the viewpoint of the Eighth Civil Senate, “legal music” seemed to be playing when the car model was changed. In one case, it was a cross-generational leap: the contract referred to Golf VI. After a “completely controversial” preparation by the Senate, the main question was whether there should be time limits for this.

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Both sides refused to do so during the negotiations. Attorney Thomas Winter, who represented several dealers at the same time, argued with the same purchase element: the purchase of a particular type of car was originally contractually regulated. Later models differ in dimensions, equipment, horsepower, or similar points, and therefore cannot be equivalent. Compare it with wine: a variety of a particular growing region of a wine cannot be replaced by a bottle of another year.

Attorney Rainer Hall, who represents Volkswagen, added that if you order a newer model, you won’t be using an older model. So this is not equivalent. It also addressed the frightening shortcomings that can arise from a software update. This has not been proven, so there is no need for exclusion. The Higher Regional Court in Cologne had listed such potential consequential damages in the lower degree and accepted a new car as the only alternative.

Mid-September 2015: The US Environmental Protection Agency (EPA) accuses Volkswagen of supplying diesel cars built between 2009 and 2015 with software that cheated US environmental regulations tests. The California Air Resources Board (CARB) reached similar conclusions. Both authorities send complaints to Volkswagen. (Pictured: EPA headquarters in Washington, D.C.)
(Photo: Environmental Protection Agency
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On the other hand, buyers’ lawyers stated that there should be no time limits for the simple reason that customers would only know about the EA189 engine’s exhaust emissions problem once the fraud was discovered. “Until 2015 everything was hidden under a thick blanket,” Richard Lindner said. His colleague Siegfried Minimer found clearer words when asked why the replacement car was ordered only years after purchase: “Because it had been fraudulently hidden earlier.” Before that, consumers had no reason to take action. Lawyer Matthias Sigmann also referred to the statute of limitations: if you do without it, “you have to bear the consequences.”

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(mfz)

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