German Civil Code-Lecture04- Case: Claim for damages PDF

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Eine Anleitung wie man im deutschen Zivilrecht einen Anspruch auf Schadensersatz prüft....

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Facts Karl Käfer decided to buy a new car. On 19.6.1999 he went to the car dealer Huber and nego=ated with the owner Hans Huber ( H) about the purchase of a new Ford. The car was to cost DM 30,000. K said that the purchase price was quite high and that he could not afford it all at once. He wanted to pay off the Ford in instalments and H could also trade in his old Golf. H replied that the Golf which was true - only had a market value of DM 2,000, but if K took the Ford, he (H) would offer DM 4,000. However, payment by instalments was not possible, he said, because of bad experiences with other customers in the past. However, he had been working for some =me with the Bavaria Bank (B), which granted loans at favourable interest rates. He also had contract forms from B in stock. K agreed. He signed the contract of sale for the Ford at a price of DM 30,000, at the same =me agreeing that DM 4,000 should be compensated by the transfer of the Golf; in addi=on, K signed an applica=on for the gran=ng of a loan in the amount of DM 26,000 (term: 4 years), which B was to pay out directly to H. The applica=on contained the necessary details concerning the purchase of the Ford. The applica=on contained all the necessary informa=on concerning the loan as well as a ques=onnaire about the borrower's economic circumstances. The form contained, among other things, the ques=on. " 4. Average monthly net income of the borrower .........." K filled out the ques=onnaire truthfully and correctly stated his net income as DM 3800. Furthermore, he signed a separate declara=on in which he was duly informed about his right of revoca=on with regard to the credit agreement. The instruc=on contained the note that in the event of revoca=on, the purchase contract would also not come into effect. The Ford was to be delivered by H as soon as B had given its consent. H immediately sent the loan agreement to B.

On 24.6.1999 H informed K that B had given her consent and that K could collect the Ford. could pick up the Ford. K drove to H the next morning and leY his Golf with him. In return, H handed over the Ford and the car registra=on documents were also exchanged. At the same =me H gave K a copy of the loan commitment signed by B on 23.6.1999. On 25 June 1999, K was informed by his employer that he was not en=rely sa=sfied with his performance during the proba=onary period and that he could therefore not con=nue to employ him in his current posi=on. At the same =me, he offered K another job with effect from 1 July 1999, in which, however, he would only earn DM 2,800 net. K agreed to this aYer his employer granted him leave for the first two weeks of the job. On 6 July 1999 an employee of B called K. She told him that they were talking about a new job. She said that they were outraged about K's false statements. A check of the 1 self-declara=on of earnings had just revealed that K was earning considerably less than he had declared. K then described the ma_er. Nevertheless, the employee explained that under these circumstances the loan would not be paid out. K replied that it would be possible to come to an agreement somehow, aYer all he had not been able to foresee the whole thing. Besides, he could meet his obliga=ons with his current income, since his wife also earned some extra money. Besides, he had the Ford, which was worth DM 30,000. However, the B employee explained that she would not enter into any further nego=a=ons and that the money would not be paid out under any circumstances. B did not adhere to the loan agreement, which was therefore invalid.

A li_le later, H also informed K by telephone that there were problems with the disbursement of the loan due to K's false informa=on. Since B was not paying out, K would have to come up with the remaining 26000DM himself, aYer all he was to blame for the present situa=on because of his disloyal behaviour. K replied that under these circumstances he could not s=ck to the purchase contract because he did not have that much money liquid. For him, only payment by instalments could be considered. H, however, explained that K knew very well that he would not agree to instalment payments, he would not make an excep=on for K either. K replied that for him the loan agreement and the purchase agreement were finally se_led and that H could also inform B of this. On the same day, K went on holiday for a week with the new Ford; he drove a total of 2000 km. On his return he brought the car to H on 13.7.1999, parked it in the yard and handed over the car registra=on cer=ficate and the keys. The mileage of the Ford totalled 3000 km; 1000 km had been driven before 6.7.1999. H again stated that he insisted on payment of the DM 26,000. AYer all, a contract had been concluded and this was to be carried out. Moreover, K should get the money from B; he thought that B was not behaving correctly. He was not familiar with such an intransigent abtude from B and it did not correspond to the agreement on their coopera=on. K explained that he saw no possibility of making B pay out. He did not want to go to court against B because the financial risk was too high for him. H should give him back his Golf. H replied that the Golf had long since been sold. He had in fact sold and transferred it to Doris Dürr for DM 2,500 on 2 July 1999. K then demanded compensa=on from H for the Golf in the amount of DM 4000. H insisted on the fulfilment of the contract of sale. AYer a few weeks H decided to put the Ford among his used cars; among these were several comparable cars. Shortly aYerwards he was able to sell the Ford

for DM 25,500. In the purchase H had paid DM 23,000 for the Ford to the manufacturer. 2 Structure Primary claims Claims of K A) Claim of K against B for payment of the loan amount of DM 26,000 to H under the loan agreement according to § 607 BGB I) Claim has arisen a) Applica=on according to § 145 b) Acceptance according to § 147 c) Scope of applica=on of the VerbrKrG according to § 1 d) Wri_en form according to § 4 VerbrKrG e) Revoca=on pursuant to § 7 VerbrKrG f) Declara=on of avoidance 1) Avoidance according to § 123 I 1. alt. 2) Result 3) Avoidance according to § 119 4) Mistake of quality according to § 119 II 5) Result Page 1 Page 1 Page 2 Page 2 Page 3 Page 4 Page 4 Page 5 Page 5 Page 5 Page 5 Page 6 h) Revoca=on of the loan promise by B according to § 6 Page 6 1) Prerequisites of § 610 2) Joint obliga=on of the spouse according to § 1357 I 2 3) Security interest II) Claim ex=nguished a) Rescission by K 1) Right of withdrawal under § 326 I 2) Default under § 284 aa) Prerequisites bb) Due date cc) Reminder dd) Result

3) Sebng a deadline with threat of refusal 4) Declara=on of withdrawal Page 6 Page 7 Page 7 Page 8 Page 8 Page 8 Page 8 Page 8 Page 8 Page 8 Page 9 Page 9 Page 9 3 5) Result Page 10 Claims of H B) H could have a claim against K for payment of DM 26,000 according to § 433 II. § 433 II from the contract of sale. I) Claim arose Page 10 a) Applica=on and acceptance according to §§ 145,147 Page 10 b) Formal requirement according to § 4 VerbrKrG i.V.m. § 9 I S.1 VerbrKrG page 10 c) Result Page 10 II) Claim ex=nguished Page 10 a) Ineffec=veness according to § 9 II 1 in connec=on with § 7 I VerbrKrG Page 10 § 7 I VerbrKrG Page 10 b) Ineffec=veness of the contract of sale according to § 158 II Page 11 c) Cessa=on of the Basis of the Contract Page 11 d) Legal Consequence Page 12 e) Result Page 13 f) Reversal Page 13 4 Secondary claims Claims of K C) Claim of K against H for compensa=on according to §§ 812 I Alt. 1, 818 II I) Claim has arisen Page 13

a) Performance by K Page 13 b) cessa=on of legal cause or without legal cause page 13 c) impossibility of surrender page 13/14 d) compensa=on for value according to § 818 II page 14 e) Calcula=on of damages page 14 f) Result Page 14 Claims of H D) H's claim against K for compensa=on for use of the 2000 km according to §§ 812 I Alt. 2 S.2 Alt.1 , 818 II, 819 I Alt. 1 , 818 IV, 292 II, 987 I BGB I) Claim has arisen Page 14 a) something acquired. Page 15 b) enrichment of K by other means Page 15 c) cessa=on of the legal reason Page 15 d) financial disadvantage of the deprived party Page 15 e) impossibility of res=tu=on Page 16 f) compensa=on for value according to § 818 II, 819 I Alt.1 , 818 IV , 5 292 II , 987 I BGB page 16 g) Result Page 17 E) H could have a claim against K for compensa=on for use of the 1000 km according to § 812 I, S.2,1st alt., 818 II I) Claim arises Page 17 a) obtained something page 17 b) by performance Page 17 c) cessa=on of legal ground page 17

d) obliga=on to surrender page 18 e) compensa=on for value according to § 818 II page 18 f) Result Page 18 F) H has a claim for damages against K pursuant to §§ 812 I Alt. 2 S. 2 Alt. 1, 818 II , 819 I Alt. 1, 818 IV, 292 II, 989 I) Claim arose Page 18 a) Deteriora=on Page 18 b) Damage to H Page 18 c) Result Page 19 G) Claim of H according to § 328 I i.V.m. Consumer Credit Agreement a)Result page 19 6 H) H's claim against B for damages according to the principles of the pFV in connec=on with the coopera=on agreement I) Claim arose Page 19 a) Breach of duty Page 19 b) Damage to H Page 20 c) Result Page 20 Primary claims Claims of K A) Claim of K against B for payment of the loan sum of DM 26,000 to H under the loan agreement pursuant to § 607 BGB I) Claim has arisen K could have a claim against B for payment of the loan sum to H if an effec=ve loan agreement within the meaning of § 607 has come into existence. It is ques=onable to which contractual group the loan agreement is to be assigned. The older views make this dependent on whether there is an agreement

between the contrac=ng par=es and the loan amount has already been disbursed. They assign the type of loan contract to the real contracts. The now prevailing doctrine is of the opinion that the existence of a loan contract is of a loan agreement is the existence of two concurrent declara=ons of intent. The criterion of the value date of the loan is dispensed with. It classifies the loan agreement as a consensual agreement. b) Applica=on according to § 145 The B would have to have made an applica=on. However, this is not evident from the facts of the case. However, the form handed over by H to B could cons=tute an applica=on. For this to be the case, B would have to have had an inten=on to be bound by the transac=on and the form would have to contain any essen=alia nego=i. However, it is ques=onable whether B already had a binding inten=on. In this case, H could have acted as B's representa=ve within the meaning of § 164. The H would have 7 would have had to be in possession of a power of a_orney pursuant to § 167 I. The facts of the case give no indica=on of this. However, it must be assumed that a credit ins=tu=on does not give a car dealer like H the discre=onary power to conclude loan agreements. Thus, when handing over the form, H acted as a mere messenger for B. Since, according to the facts of the case, a liquidity check is carried out before a loan is disbursed, the handing over of the form is an invita=o ad offerendum. However, the handing over of the signed form by K to H could cons=tute an applica=on within the meaning of sec=on 145. The document includes the essen=al elements of the contract as well as the inten=on of K to be legally bound. Thus, there is an applica=on for the conclusion of a loan contract within the meaning of § 145. b) Acceptance according to § 147

According to the facts of the case, K's applica=on was not made directly to B. However, H could also be the declarant in this case. However, H could also have acted as a messenger for B in this case. The oral communica=on by H on 24.6.1999, but at the latest the loan commitment signed on 23.6.1999, which K receives on 25.6.1999, can be described as acceptance by B within the meaning of § 147. c) Scope of applica=on of the VerbrKrG according to § 1 However, the present loan agreement could be a consumer credit agreement according to § 1 II, the validity of which is subject to the provisions of the VerbrKrG. A credit agreement within the meaning of § 1 II VerbrKrG could have come into existence. A credit agreement is an agreement in which the creditor grants the consumer a credit against payment in the form of a loan, a deferred payment or other financial assistance. The legal defini=on of the terms creditor and consumer can be found in Sec=on 1 I VerbrKrG. A creditor is any person, whether natural or legal, who grants credit in the course of his business. B fulfils these requirements, as it is a banking ins=tu=on that grants credit in the course of its normal commercial ac=vi=es. The consumer, as the borrower, must be a natural person and use the credit exclusively for private purposes. Use of the sum for commercial or self-employed professional ac=vi=es must be excluded. 8 Since K wants to finance the Ford with the help of the credit agreement and there is no indica=on of commercial or professional use of the credit sum in the facts, K acts as a consumer. B guarantees K a loan sum of DM 26000. This is to be paid out directly to H. Thus, the =me of performance of K is shiYed in his favour; consequently, it is a ques=on of a deferral of payment. Furthermore, it is to be assumed that the present credit agreement was also to be granted against payment. Although

the facts of the case do not give any informa=on on this, it can be assumed on the basis of the ques=on about the average net income and the usual economic procedure that B does not grant the loan to K free of charge. Consequently, a consumer credit agreement pursuant to § 1 II VerbrKrG has arisen. However, the applica=on of the VerbrKrG could be excluded if an excep=on of § 3 VerbrKrG existed. Sec=on 3 no. 1 or 3 VerbrKrG could be considered here. According to this, the net loan amount should not exceed 400 DM or the consumer should not have been granted a payment extension of more than three months. However, the credit agreement between K and B includes the fixing of the amount at DM 26,000. and a term of 4 years. Therefore, the VerbrKrG applies to this credit agreement. d) Wri_en form pursuant to § 4 VerbrKrG In order to be valid, the consumer credit agreement must be in wri=ng in accordance with § 126 pursuant to §§ 4 I 1,6 VerbrKrG. However, according to § 4 I 2 VerbrKrG, the form is sa=sfied, in devia=on from the provision of § 126 II 2, if the applica=on and the acceptance are declared in separately signed documents. K and B each signed both the applica=on and the acceptance separately. The declara=ons of intent of the two par=es are declara=ons of intent that need to be received. As to the proper form of the declara=ons of intent upon conclusion of the contract, they must also be received by the absent party in the prescribed form pursuant to § 130 I. The applica=on for K's loan agreement was forwarded by H to B and was also received by it. However, the ques=on arises as to whether K's signature was in his own hand. According to § 126 I, the signature of the issuer must be handwri_en, whereby the form is not observed if the signature is made by machine. The K has signed by the 9

H received the copy of his applica=on to the B. However, this copy is not a mechanical process. K has signed the front sheet of the applica=on with his own hand and now receives the copy signed by the B. The signature is therefore handwri_en. Thus, the signature has been made by hand. The form, signed by both par=es, also contains all the required informa=on of § 4 I 4 No. VerbrKrG. Consequently, the wri_en form requirements of § 4 I VerbrKrG are met. e) Revoca=on pursuant to § 7 VerbrKrG However, the credit agreement could be void pursuant to sec=on 7 I. This is also the case if it falls within the scope of applica=on of the VerbrKrG pursuant to sec=on 1 II VerbrKrG and the formal requirements of sec=on 4 I VerbrKrG have been complied with. If the K does not revoke the credit agreement within the one-week period of § 7 I VerbrKrG, the agreement becomes effec=ve ex nunc. Accordingly, the consumer must have revoked his declara=on of intent to conclude the credit agreement within one week. In order to comply with the =me limit, the consumer must be given a separate instruc=on on his right of revoca=on in accordance with §7 II p. 2 and the consumer must sign it. K signed this instruc=on on 19.6.1999. Sec=ons 186, 187 -193 are used to calculate the =me limit. Here, according to § 187 I, the principle of civil computa=on comes into play. The =me limit only begins one day aYer the event, in this case the conclusion of the contract, has occurred. According to the facts of the case, this would be 20.6. and the end of the period according to § 188 II Alt 1, 26.6.1999. Within this period, K has not formulated a revoca=on. Thus the contract is effec=ve according to § 7 II VerbrKrG. Nevertheless, the loan agreement could be null and void from the beginning according to § 142 I, if B has effec=vely contested its declara=on of intent. f) Declara=on of avoidance

For an effec=ve avoidance, the person en=tled to avoidance must have made a declara=on of avoidance pursuant to § 143 I. This declara=on of avoidance is a declara=on of intent. This declara=on of avoidance is a declara=on of intent which must be made to the opponent. It does not need to contain the word "contest", it is sufficient that the contes=ng party has the inten=on to retroac=vely destroy the legal transac=on. This was done by the 10 telephone message of the employee of B , in which she informs that the bank is indignant about the false statements of K. Therefore, they are no longer prepared to adhere to the loan agreement. The employee acts as a messenger of declara=on for B. There is therefore a declara=on of rescission vis-à-vis the opponent of rescission. 1) Avoidance according to § 123 I 1. alt. One possible ground for avoidance is fraudulent misrepresenta=on pursuant to § 123 I, 1st alterna=ve. The first prerequisite is that the deceiver knows the truth. At the =me the contract was concluded, K truthfully stated his then salary of DM 3,800 on the form for the loan agreement. However, the concealment of facts or "false statements" is only to be regarded as decep=on if there is a duty of disclosure with regard to the concealed fact. Furthermore, the person who assumes a future liability must disclose an insolvency that is to be feared. According to the facts of the case, K was in a trial employment rela=onship at the =me the contract was concluded. However, K could not have known at that =me that his employment would be terminated. One could ques=on whether the income of a person in a trial employment rela=onship is high enough to repay a loan with a term of 4 years. If one affirms this condi=on, however, a challenge could fail due to the intent to deceive. K wanted to buy a new car. He also truthfully stated his net income at the =me. It

cannot be assumed that he deliberately concealed his trial employment. This was irrelevant to him. Thus he acted without intent and not fraudulently. 2) Result: There is no fraudulent misrepresenta=on under § 123 I, 1st alterna=ve. 3) Avoidance according to § 119 For the declara=on of rescission see above. Here it is also determined that by way of an interpreta=on according to § 133,157 a declara=on of rescission due to fraudulent misrepresenta=on can also be seen at the same =me as a rescission due to error. In her conversa=on with K, B spoke about the false statements on his part. Thus, there could be an error on the part of B with regard to one of K's characteris=cs. 4) Error as to property according to § 119 II 11 A ground for avoidance could be a mistake as to quality in the sense of § 119 II. Thus, an error must have referred to a quality that was objec=vely essen=al for the conclusion of the credit agreement. In addi=on to trustworthiness and reliability, a person's quali=es also include his or her ability to pay and creditworthiness in credit transac=ons. Credit unworthiness is assumed if, on the part of the borrower, the ability to pay when the loan falls due is to be feared in view of concrete financial circumstances. Accordingly, the net income of K can be regarded as a property. Also, at the =me of the conclusion of the contract, there were no indica=ons that K's employer would termi...