The diesel scandal - do you have to pay for the kilometers driven when you return it?
Is a compensation due to the return of the manipulated car due for miles driven? If so, how much compensation can the manufacturer demand?
We explain the much discussed issue of user compensation in connection with the Exhaust gas scandal / diesel scandal.
In most cases, the buyers complain VW on repayment of the purchase price. The central point of controversy so far has been the legal question of whether German tort law makes such a claim possible. Other questions such as Interest rates and compensation for use have hardly been respected by the courts so far. In the meantime it has become clear that for many buyers of a VW vehicle, the question of the amount of compensation for use is decisive for how lucrative and rewarding the Lawsuit against VW is.
Thus, in many regional courts, which consider claims against VW for repayment of the purchase price justified, the legal view established to calculate the compensation for use on the basis of the mileage of the person concerned and the purchase price paid while taking into account an assumed total mileage of 250.000 km. The way calculated usage compensation will then be deducted from the purchase price in the judgment. The rest of the plaintiff gets paid by VW.
This calculation method ensures that VW customers who have traveled with the vehicle for a few kilometers over the years generally receive an amount well above the market value of the vehicle, while other victims who have driven many kilometers over a short period of time are checking exactly should, in the case of a positive judgment, even get back the current market value of the vehicle.
Tip: In such cases, it should be checked whether from the outset only one of the vehicles caused by the exhaust gas scandal inferior to the VW is sued.
So far, little "customer-friendly" is the fact that the number of Landgericht judgments, which completely deny a duty to use compensation, is very manageable.
So far, only judgments of the LG Augsburg and the LG Halle are known (LG Augsburg, judgment of 5.12.2018 - 21 O 3267/17; LG Augsburg, judgment of 14.11.2018 - 21 O 4310/16; judgment LG Halle - 5 O 109/18), in which it was decided in favor of the injured VW customer that the customer does not have to deduct any compensation for use. In the process, the voices of representatives have recently increased who regard the current jurisprudence tendencies as critical. This is how Professor Dr. Michael Heese from the University of Regensburg said in an article that no compensation for use should be taken into account at the expense of the plaintiffs (NJW 2019, 257). Professor Dr. Heese argues that the VW group, which has deliberately cheated and manipulated, should not be exonerated at the buyer's expense. In the emissions scandal, the generally applicable prohibition of enrichment in German law on damages must take a back seat to the preventive function of tort law. Professor Dr. Thomas Riem from the University of Passau does not think this reasoning is convincing, but he also sees problems with the current calculation of the compensation for use in the judgments of the regional courts (NJW 2019, 1105). The lawyer Professor Dr. Jan Bruns also considers most of the judgments to be unconvincing when it comes to compensation for use and is in favor of a further differentiation depending on the time of default.
This depends in particular on the assumed total mileage. From the plaintiff's point of view, this should be as high as possible. In fact, if one considers a compensation for use to be justified, corrective adjustments must be made to the total mileage of only 250.000 km assumed by many regional courts. This is clearly set too low. Most recently, the OLG Cologne estimated the total distance traveled at 500.000 km and cited the actual total distance traveled by real diesel vehicles of almost 500.000 km each. The assumption of 500.000 km total mileage compared to 250.000 km means that the calculated compensation for use is halved at the expense of the plaintiff.
In addition, it is wrong to calculate the compensation for use on the basis of the purchase price actually paid. The regional courts regularly draw a parallel from the tort law to the right of withdrawal under sales law (§ 346 BGB), for which there is, however, no basis. In fact - in order to avoid an excessive burden on the plaintiff - a purchase price reduced by 10% to 30% must be applied instead of the purchase price paid, since the vehicle was less valuable than it was actually assumed and paid for as a result of the manipulation during its useful life. This also leads to a reduction in the compensation for use, which should be brought forward by plaintiffs in the lawsuit.
Tip: If you have won in the first instance before the district court, but have to pay too high compensation for use, you should immediately check whether due to the compensation for use the (partial) appeal should be filed. Please note the short appeal period of one month from delivery of the judgment of the LG.