BGHZ 132, 373 VI. Civil Senate (VI ZR 138/95) = JZ 1996, 1075
07 May 1996
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Raymond Youngs
Professor B. S. Markesinis


The claimant seeks compensation in respect of a road accident. His car (a BMW 318i) was damaged when the first defendant ran into it with her car on the 12th February 1993. The first defendant and the second defendant (who is liable to indemnify her) are unquestionably fully liable for the claimant's loss.

After the accident, the claimant's car was towed to a garage at T, where the claimant lived. By arrangement with the garage, the claimant hired a BMW 316i on the afternoon of the day of the accident (a Friday) from the K car hire business at a daily rate of 330 DM. His damaged car was looked at by an expert on the 15th February 1993. As the expert calculated that the repair costs would be considerable, and the repairs were expected to last for 10-11 working days, the claimant did not carry out the repairs, and obtained another car. Before this was authorised, he gave back the hired car on the 26th February 1993.

The parties are only in dispute about the car hire costs. The Landgericht only allowed the claimant 2122.68 DM of the 5926.96 DM charged by the K firm. The Oberlandesgericht allowed him a further 1306.62 DM.

By the appeal in law the claimant sought reimbursement of the remainder of the car hire costs of 2497.66 DM. The defendants cross-appealed against the award of 1306.62 DM by the appeal court.

The appeal in law led to the quashing of the judgment and reference back. The cross appeal in law was rejected.


I.-II.1. The appeal court correctly proceeds on the basis that the claimant (who - as is no longer in dispute - was allowed to hire a BMW 316i for 14 days) can demand compensation from the defendant for the hire costs which were objectively necessary under § 249 sentence 2 of the BGB as restoration expenses (references omitted). According to the constant case law of the Senate, those expenses which a sensible business-minded person would make in the position of the victim are to be regarded as necessary (references omitted). If the victim can influence the level of the costs to be spent to eliminate his loss, he must, in view of the duty to mitigate loss, choose the more economical way of rectifying the loss, within the scope of what can be reasonably expected of him (references omitted). This follows from the concept of loss and purpose of compensation for it and from the legal concept in § 254 (2) sentence 1 of the BGB, which in the end derives from § 242 of the BGB. The requirement that rectification of loss shall be sensible from an economic point of view does not, however, as the Senate has already explained, call for the victim to economise for the benefit of the tortfeasor or to behave in every case as if he had to bear the loss himself (references omitted). This is because in the latter case the victim will often make sacrifices or efforts which, in his relationship with the tortfeasor, are over and above his obligations and which the tortfeasor cannot therefore demand from him. In the effort to objectify the need for restitution within the framework of sentence 2 of § 249 of the BGB in an economically sensible way, the basic concern in this provision must not be lost sight of, i.e. that if the tortfeasor is fully liable the victim should receive compensation for loss which is complete as possible (references omitted). Therefore, in examining whether the victim has kept the expenditure on rectifying loss within sensible limits, the loss must be considered in the context of the actual circumstances i.e. account must be taken of the special situation of the victim, especially of his individual opportunities for knowledge and influence as well as the difficulties which he may possible have (references omitted). In this respect, the position for the victim who hires a replacement vehicle with a well known car hire undertaking on the conditions offered him there appears similar to the trading in of a vehicle damaged in an accident to a respected used car dealer (reference omitted). Just as with the latter type of rectification of loss, the victim only needs, when hiring of a replacement vehicle, to go to the market which is open to him in his situation.

2. The considerations on which the appeal court arrived at a reduction of the car hire costs claimed by the claimant here cannot be reconciled with this understanding of the content of the authority to compensate in § 249 sentence 2 of the BGB, even within the framework of the freer scope which the judge of fact has to measure the loss under § 287 (1) of the Civil Procedure Code.

a) The appeal court leaves undecided the question of whether the K firm's hire price list was shown to the claimant, as he asserts, before the hiring of the replacement vehicle. That is not a decisive issue. This is because this list indisputably included ten further well known hire firms, also active nationwide, who were all dearer than the K firm. The appeal court has not established that the prices given for those undertakings were possibly incorrect; instead that court itself explains in another context that the list would have correctly reproduced the accident replacement tariffs named in it. Even the reply to the appeal in law does not claim anything different. Accordingly, the claimant has, in hiring the replacement vehicle, kept to the lower margin of the prices demanded by respected hire firms with their accident replacement tariffs.

b) The appeal court's view that the claimant had violated the requirement of economy by the very hiring of the replacement vehicle at the accident replacement tariff cannot be followed by the Senate.

aa) The appeal court's accusation in this connection that the claimant did not obtain any comparative offers before hiring the replacement vehicle has no effect with reference to the accident replacement tariffs demanded by the vehicle hire firms, for the simple reason that the tariff of the K firm was, as has been explained, at the lower margin in the context of the accident car replacement business. If the claimant was therefore justified in hiring a vehicle according to such a tariff (which is yet to be discussed below), his possible violation of a duty to inquire has had no effect. Therefore it can remain open here whether the duty of the victim to obtain at least one or two competitive offers (which the Senate has stated to apply before the use of a hired car for a holiday journey of three weeks or longer (references omitted)) also exists in principle when - as in the present case - the replacement vehicle is expected to be needed for only one to two weeks.

bb) The decisive issue in the legal dispute is therefore whether the victim of an accident, like the claimant in this case, is allowed to hire a vehicle in accordance with the accident replacement tariff. This question, which is disputed in the case law of the courts of first instance, is in principle to be answered in the affirmative, according to the view of the Senate.

(a) According to the constant case law of the Bundesgerichtshof (and the appeal court also proceeded on the basis of this), the victim does not first need to conduct a kind of market investigation before hiring a replacement vehicle, in order to find the vehicle hire undertaking with the most favourable price (references omitted). If the tariff at which he hires a replacement vehicle is within the framework of what is usual, the costs expended are to be refunded to him by the tortfeasor; it is only when the victim can easily recognise that the undertaking chosen by him demands car hire charges which are outside what is usual that he will not be allowed to conclude a hire contract on such conditions at the cost of the tortfeasor (reference omitted).

(b) According to the claimant's argument, only the replacement tariff is offered by car hire undertakings to road traffic accident victims. The appeal court also proceeds on the basis that the claimant, if he answered the relevant question truthfully, would likewise only have been able to obtain a vehicle after an accident from some other hire firm at the accident replacement tariff (references omitted). In view of this market practice, the car hire charges demanded by the K firm were not outside what was usual in such cases.

(c) The fact that the claimant could, as is the view of the appeal court, have found car hire undertakings on appropriate inquiry which would have granted him a special tariff which was more favourable than the accident replacement tariff does not, contrary to the view of the appeal court, cause the hire price demanded by the K firm to fall outside the scope of "necessary expense" in the sense of § 249 sentence 2 of the BGB. This is because the claimant had no obligation to the defendant to make such a search for a more favourable special tariff (references omitted). As the appeal court explains, hire firms offer a number of other tariffs besides the accident replacement tariff, which they describe as, amongst other things, leisure, flat rate, basic, weekly, monthly, weekend, economy, credit card or special tariff. It is not generally possible to proceed on the basis that an accident victim knows of such tariffs and that he knows of their differences from the accident replacement tariff which is offered to him as suitable for his circumstances (reference omitted). The appeal court has not established that the claimant might have had such knowledge. The circumstances in which he would be expected to try to obtain another tariff if he had such knowledge can therefore remain undecided.

It also emerges from the tariff descriptions mentioned above that numerous distinctions exist between the individual conditions. The complex tariff network of car hire firms cannot, contrary to the view of the appeal court, easily be understood by a victim. The appeal court reaches a different view on the ground that the K firm's hire price list showed that a comparison was perfectly possible. But this argument is mistaken, because that list only cites the respective accident replacement tariffs of the car hire undertakings and says nothing about the peculiarities of the other tariffs. Besides this, the accident replacement tariffs do not at all appear to be always the dearer tariffs as the appeal court thinks they are. The judgment of the Bundesgerichtshof of the 5th April 1995 (reference omitted), amongst others, shows that the opposite also occurs.

(d) The claimant, sustaining an accident at midday on Friday, was allowed, according to the principles explained at the start in relation to the authority to compensate in § 249 sentence 2 of the BGB, to hire a replacement car on the general market accessible to him and within reach of T, the country town where he lived, at the time of the accident (and therefore specifically from a well known undertaking in the car hire sector which was active nationwide) in accordance with the tariff mentioned to him as appropriate for his purposes. He was also allowed in this connection to answer truthfully the question by the hire firm as to whether he had had an accident. If the tariff which was thereupon offered to him was within the scope of what was usual in such cases for comparable car hire suppliers, as was the case here with the accident replacement tariff of the K firm, the costs of the hire vehicle count as necessary restoration expenses in the sense of § 249 sentence 2 of the BGB.

(e) The question of whether up to 25% higher costs are justified in the accident replacement vehicle business in comparison with the so-called free or cash business (which the appeal court denies in spite of its reference to the higher risk of non-payment in that business) has no effect on the relationships of the parties in the law on loss calculation (reference omitted). This is because even if the hire firms, by omitting to refer to a more beneficial inclusive tariff and demanding a higher accident replacement tariff, made themselves liable to compensation to their hirers for loss, as the appeal court considers, these market practices in the hiring sector cannot work to the victim's disadvantage in the relationship between the tortfeasor and the victim (references omitted). The tortfeasor's liability insurer may in such a case take a transfer from the victim, if he reimbursed him for the car hire costs expended as being necessary in his situation, of possible claims to compensation for loss against the hire firm in application of the legal concept in § 255 of the BGB (references omitted).

c) In the present case, the car hire costs must therefore be reimbursed to the claimant on the basis of the agreements made by him with the K firm, as necessary expenditure. [Details are given].

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