Bundesgerichtshof (sixth civil division) BGHZ 86, 256 NJW 1983, 810 = JZ 1983, 499
18 January 1983
Professor Basil Markesinis
J A Weir

A motor car manufactured by the defendant was sold by the L garage to the plaintiff in February 1976. The throttle on this car was defective in that the accelerator-pedal did not always spring back after being depressed. On 12 May 1976 the plaintiff tried to repair it, but in vain. In June 1976 the gas-pedal broke off and he installed another pedal of his own devising.

On 5 July 1976 the plaintiff had an accident in B, allegedly because the car accelerated after he had removed his foot from the pedal. The front of the car was damaged. The plaintiff had the car repaired, and a new gas-pedal from the factory was installed. A few weeks later there was another accident when the car struck a fence while being reversed by the plaintiff’s wife, then his fiancée. This accident also, according to the plaintiff, was due to the fact that the vehicle accelerated unexpectedly because the gas-pedal stuck. This time it was the rear end of the car which was damaged. The cost of repairs to the plaintiff’s car on these two occasions totalled DM 3742.

[Here follow technical details of the defect, according to the two expert reports procured by the plaintiff.]

The plaintiff argues that the damage was due to a defect in construction and that the defendant is liable therefore: in respect of the repairs to his car and the garden fence, as well as the cost of the two expert reports, he claims a total of DM 4443. The Landgericht rejected his claim for the cost of repairing the car (in the amount of DM 3742). The plaintiff’s appeal was dismissed. On his further appeal to this court, the decision below is reversed and the case remanded.


The judgment of the Court of Appeal is wrong in law.

1. Certainly the Court of Appeal was right to hold that where a purchased chattel suffers damage because of the faulty construction or manufacture of a component part, its purchaser may have a claim in tort against the manufacturer on thebasis of an invasion of his rights as property-owner (§ 823 I BGB).

(a) It is true that tortious duties are not imposed, like guarantees in the law of sales, in order to protect a contractor’s expectations of utility and value in the acquisition of an undefective thing (see BGHZ 77, 215, 218 with references; BGHZ 80, 186, 188). They rather relate to the interest which people have in the integrity of their belongings or possessions, in not having them adversely affected by the chattel which the manufacturer puts into commerce (Integritätsinteresse). Such tortious duties to guard against damage or disturbance may be imposed on the manufacturer not only as regards other property of the acquirer which may be imperilled by faults in construction or production of the manufactured item, but also as regards that item itself. In principle, the purchaser’s interest in having the purchased item undamaged and undisturbed is as much worth protection as his interest in the safety of the rest of his property; the manufacturer must therefore respect this interest as well (see Bruggemeier WM 1982, 1294, 1303). Accordingly, it is not a precondition of tortious liability that other goods or interests of the consumer or of third parties should necessarily have been affected by the thing which is put into commerce with a defective component (contra, Schlechtriem [reference omitted]). The manufacturer may be held liable to the consumer in tort if the impairment or disturbance of the manufactured item constitutes harm which it was the manufacturer’s duty under the law of tort to avoid out of respect for the interest of theowner or possessor in the safety of his property.

(b) Where the loss due to the defective nature of the thing simply reflects the acquirer’s interest in its utility and value, the case is different, for as we have said, duties in tort are not imposed in order to reinforce the purchaser’s expectation that he will have the value and use of an object without a defect. This expectation is protected by the law of contract exclusively, save in cases under § 826 BGB where the harm is caused deliberately. It would be wrong to say that whenever a person acquires a defective thing his rights as owner are thereby invaded, and thus invoke the law of tort. Such harm cannot, as is generally acknowledged, ground a claim in tort (see RG JW 1905, 367, 368; compare BGHZ 39, 366; 55, 392; 67, 359, 364; BGH judgments of 11 Jan. 1978, NJW 1978, 1051; 5 July 1978, NJW 1978, 2241, 2242). If the only harm in issue is the undervalue due to the original defect and existing from the time of acquisition, that is simply a case of disappointed contractual expectations, and the law of tort has no role to play (so Duns/Kraus, Haftung für schädliche Waren (1969), 66). But the harm may not be substantially identical (stoffgleich) with the undervalue of the thing in that the defect impairs the owner’s interest in its value and usability; it may take the form of an invasion of the consumer’s interest in the integrity of his property and possessions which the manufacturer may in the circumstances be under a duty to respect. The manufacturer can then in principle be subjected to delictual products liability, and this is so even when there is a concurrent contractual claim under the law of warranty or replacement [references omitted], for it is accepted law that the rules of tort and contract apply concurrently and independently neither excluding the other (BGHZ 67, 359, 362; constantholding).

Of course liability in tort must not be permitted to unhinge the law of contract. But that will not happen in cases like the present if tort liability is carefully restricted to the integrity interest, appropriately distinguished in each case from the interest in usability and value. There is no conflict with the refusal of courts to impose liability in damages for positive breach of contract in cases of so-called consequential loss due to defects except where the purchaser has suffered damage to property other than the purchased item (BGHZ 77, 215, 217; so, too, for the contract of services, BGH 4 March 1971, NJW 1971, 1131, not reported on this point in BGHZ 55, 392). This judicial extension of warranties in sales (§§ 459 ff. BGB) was undertaken in order to reinforce, not to exclude, in cases where a special relationship existed, the protection of integrity provided by the law of tort. The tort liability of the supplier or manufacturer for damage due to defects in the purchased thing is not thereby blocked off (contra, apparently, Diederichsen, NJW 1978, 1281, 1286 [otherreferences omitted]).

2. We realize that there will occasionally be practical difficulties in distinguishing the case where the harm in suit is substantially identical with the diminution in value of the thing due to an original defect which, as we have said, should be dealt with by the law of contract, from the case, subject to the law of tort where the damage or disturbance to the thing, defective owing to the manufacturer’s negligence, goes beyond the owner or possessor’s interest in the usability and value of the thing and affects his interest
in the integrity of his property. Sometimes the defect will be so radical that from the very beginning the thing is really worthless and that therefore the ‘damage’ to the thing when the defect manifests itself is ‘substantially identical’ (see the cases in RG JW 1905, 367 and BGHZ 39, 366). Such cases will be relatively rare. Much commoner will be the case where the defect originally affects a more or less distinct part of the thing. Even so, one must find criteria ofdistinction which are of practical utility [reference omitted].

(a) In BGHZ 67, 359 the thermostat in a dry-cleaning machine was defective and unable to perform its safety function with the result that the machine overheated and burnt out. The Eighth Civil Senate allowed a claim in tort essentially because the defective thermostat was functionally distinct and, in relation to the machine as a whole, relatively trivial in value. These criteria may or may not be capable of extrapolation beyond the facts of that case [references omitted], but as the court below clearly recognized, they certainly cannot of themselves determine when the supplier or manufacturer of a partially defective product is liable. The manufacturer’s liability cannot depend solely on the relatively accidental consideration of how the component parts are put together [references omitted]. But it is clear that the Eighth Civil Senate was dealing only with the case before it and had no intention of laying down definitive tests, as is shown by its subsequent decision of 5 July 1978. Then it allowed the purchaser of a used car to sue the seller in tort for the harm suffered in an accident due to the fact that the rear tyres were not in conformity with regulations. In both decisions the court expressly stated that it wasnot laying down definitive criteria.

(b) The adoption of a common-sense or economic standpoint will often enable one to say whether the harm in suit is substantially identical with the undervalue due to the original defect [reference omitted]. Thus substantial identity will be found where the defective component is so integrated into the composite or so unified with the part now damaged but originally undefective that separation is impossible without great economic loss (BGH 24 June 1981, NJW 1981, 2248, 2249). So, too, where it would make no economic sense to make the defect good (this may have been the case in the decision of the Seventh Civil Senate on 25 May 1972 (BauR 1972, 379) where the foundations underneath the whole of the extension were inadequate). Other cases where the distinction is hard to draw must be determined in accordance with the principles stated in 1(b) above, taking into account the nature and extent of the damage in suit, the nature of the defect to which it was due, the effect of the defect on the condition of the thing, and, as reflected in these factors, the extent of the manufacturer’s duty in tort which here, as in other cases, is affected by the purpose of the product, the consumer’s expectations of it and even, under certain circumstances, its price [reference omitted].
(c) In this case we need not ask whether the throttle was a functionally distinct component of the motor car in the sense of BGHZ 67, 359, or whether the Court of Appeal was right to suppose that it was not. For the purposes of this appeal we must take the accident to have been caused by a defect which inhibited the flow of petrol, and in such a case the common-sense observer could disregard the nature and origin of that defect and say that the harm to the car was substantially different from the undervalue which the defect caused to the owner’s interest in its being worth what he paid for it. The critical feature in this case is that the vehicle remained roadworthy despite the defect in the throttle, which by no means rendered the vehicle valueless from the outset, and that the inherent risk of damage could have been allayed by prompt discovery of the defect and its repair at little cost and without damage to other parts of the car. The accident to the car was far from being a necessary manifestation of the undervalue of the car owing to the defect in the petrol supply; the harm was rather due to the concurrence of regrettable circumstances which could and would have been avoided had the plaintiff become conscious of the dangerin good time.

We need not decide whether the manufacturer’s liability for property damage resulting from a defect exists only if the damage or disturbance occurs in a violent manner (for example, through fire, explosion, or similar events) [reference omitted]. But certainly when the defect in a component is apt to lead to the destruction of a valuable chattel such as a motor car or damage to it in a ‘violent’ manner such as occurred here, then this clearly speaks for the liability of the manufacturer: the duty breached by the manufacturer in putting into circulation a vehicle with such a noxious defect was imposed on him not just because people are interested in the usability and value of their chattels but also because the owner or possessor has an interest in theirwell-being.

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