What did the OLG Köln decide in case 11 U 20/24?
The OLG Köln ordered the dealer to repay 11,654.35 euros concurrently against return and retransfer of the car (Zug um Zug), and declared that the dealer is in default of acceptance (judgment of 9 April 2025, 11 U 20/24, no leave to appeal to the Federal Court of Justice). The court of first instance (LG Bonn, judgment of 16 February 2024, 19 O 165/23) had dismissed the claim — the buyer’s appeal was largely successful.
The facts are everyday used-car business. In 2023 a consumer bought a passenger car more than 16 years old with 112,000 km on the clock from a dealer for 11,999 euros. He paid 6,999 euros in cash and traded in his previous car for 5,000 euros (trade-in — Inzahlungnahme). Page 2 of the 3-page contract form contained a block of „negative quality agreements” (negative Beschaffenheitsvereinbarungen) with boxes to tick, including:
„Der Verkäufer übernimmt keine Haftung auf Unfallfreiheit, Nachlackierungen/Spachtelarbeiten, da das Fahrzeug gebraucht und die Fahrzeughistorie nicht bekannt ist.“
„The seller assumes no liability for accident-free condition, repainting/filler work, since the vehicle is used and the vehicle history is not known.“
contract form, quoted in the judgment of the OLG Köln of 9 April 2025, 11 U 20/24 — our translation
„Es ist möglich, dass das Fahrzeug einen oder mehrere Unfälle hatte. Frühere Unfälle, Nachlackierungen, Spachtelarbeiten oder infolge dessen entstehenden weiteren Schäden an jeglichen Bauteilen sind von der Haftung ausgeschlossen.“
„It is possible that the vehicle has had one or more accidents. Earlier accidents, repainting, filler work or further damage to any components resulting from them are excluded from liability.“
contract form, quoted in the judgment of the OLG Köln of 9 April 2025, 11 U 20/24 — our translation
A third checkbox confirmed that the buyer was „aware of this” and acted at his own expense and risk. Shortly after handover the car began to judder while driving. An inspection revealed numerous repainted components — the car had been in at least one accident.
Is a repaired accident car still defective?
Yes. Prior accident damage makes a car defective under the objective requirements of § 434 (3) of the German Civil Code (BGB) — no matter how carefully the damage was repaired. A used-car buyer has to accept ordinary wear and tear appropriate to age and mileage. Absent special circumstances, however, the buyer may assume that the vehicle has not been in an accident causing more than trivial damage (Federal Court of Justice, judgment of 10 October 2007, VIII ZR 330/06).
Only minor superficial paint damage counts as trivial. Numerous repainted components — as in the Cologne case — rule that out. They point to more substantial damage, and the stigma remains: the market pays less for an accident car (merkantiler Minderwert — loss of resale value), even if it runs perfectly.
Can a dealer exclude warranty rights in a contract with a consumer?
No. In a consumer sale (Verbrauchsgüterkauf, § 474 (1) BGB) the trader cannot rely on any agreement made before a defect was reported that deviates from the statutory liability for defects to the consumer’s disadvantage (§ 476 (1) sentence 1 BGB). The classic blanket warranty exclusion that works between private individuals is ineffective in a dealer-consumer contract. This is the legal position since 1 January 2022, shaped by the EU Sale of Goods Directive 2019/771, and it applies to all contracts concluded since then.
Since the 2022 reform, agreements on the car’s condition no longer automatically override the objective requirements in consumer sales. The law leaves the trader one narrow path — a so-called negative quality agreement under the conditions of § 476 (1) sentence 2 BGB. The OLG Köln put its essence like this:
„Soll zulasten des Verbrauchers von den objektiven Anforderungen durch eine Beschaffenheitsvereinbarung abgewichen werden (negative Beschaffenheitsvereinbarung), muss er vor Vertragsschluss von der konkreten Abweichung eigens in Kenntnis gesetzt werden und dieser gesondert zustimmen.“
„If a quality agreement is to deviate from the objective requirements to the consumer’s disadvantage (negative quality agreement), the consumer must be specifically informed of the concrete deviation before conclusion of the contract and must separately consent to it.“
OLG Köln, judgment of 9 April 2025, 11 U 20/24 — our translation
What formal requirements must the clause meet?
Two, cumulatively (§ 476 (1) sentence 2 nos. 1 and 2 BGB). First, before making the contractual declaration the consumer must be specifically informed that a particular characteristic of the goods deviates from the objective requirements — for example: „accident damage to the left side, door and sill replaced”. Second, that deviation must be expressly and separately agreed in the contract.
The explanatory memorandum to the government bill (Bundestag printed paper 19/27424, p. 42) spells out what „separately” means: the deviation must be highlighted so that the consumer consciously factors it into the purchase decision. It must not be tucked away among numerous other provisions of a standard form or in general terms and conditions, and the consumer must give specific consent — a pre-ticked box which the buyer merely fails to untick is not enough.
The Cologne form failed both tests. In substance the seller communicated only that she did not know the car and that an accident was „possible” — that is no notification of particular characteristics. And the clauses were printed in the same font size as the rest of the contract, on page 2 of 3, without highlighting and without a separate signature — nothing about them was „express and separate”.
Why is the clause „the car may have had accidents” a circumvention of the law?
Because it describes no concrete characteristic of the car being sold and merely shifts the risk of hidden defects onto the consumer. A negative quality agreement must be descriptive: the seller tells the buyer what the car is actually like. Wording such as „möglicherweise mangelhaft” (possibly defective) or „eventuell nicht unfallfrei” (may not be accident-free) describes nothing — after reading it the buyer still does not know whether the car deviates from the objective requirements or not. The warning function the statute intends is defeated. The OLG Köln summed up:
„Eine solche Bestimmung stellt letztlich eine Umgehung i.S.v. § 476 Abs. 4 BGB dar, nämlich eine Beschaffenheitsvereinbarung, durch die das Risiko des Bestehens verborgener Mängel auf den Verbraucher abgewälzt werden soll.“
„Such a provision ultimately amounts to a circumvention within the meaning of § 476 (4) BGB — a quality agreement designed to shift the risk of hidden defects onto the consumer.“
OLG Köln, judgment of 9 April 2025, 11 U 20/24 — our translation
The same logic defeats related dealer techniques. We cover the blanket label „Bastlerfahrzeug” (hobbyist’s car) in the article on a car sold as a Bastlerfahrzeug, and the invoice note „nicht unfallfrei” (not accident-free) in our article on an accident-damaged car from Germany. In that second case the Regional Court of Cologne relied expressly on the OLG judgment discussed here.
Does it hurt the buyer that he inspected the car before buying?
No. In a consumer sale, even the buyer’s positive knowledge of the defect at the time of contracting leaves his rights untouched. § 442 BGB, which imposes that sanction in ordinary sales, is expressly disapplied in consumer sales by § 475 (3) sentence 2 BGB. The OLG Köln disposed of the dealer’s objection in one sentence:
„Mangelkenntnis reicht beim Verbrauchsgüterkauf nicht aus für einen Ausschluss der Gewährleistungsrechte über § 476 BGB hinaus.“
„In a consumer sale, knowledge of the defect does not suffice to exclude warranty rights beyond the limits of § 476 BGB.“
OLG Köln, judgment of 9 April 2025, 11 U 20/24 — our translation
In practice this means that viewing the car, a test drive or the popular line „you saw what you were buying” changes nothing. All that matters is whether the seller complied with § 476 (1) sentence 2 BGB.
Was the defect not too minor to justify rescission?
No. Rescission is barred only where the breach is immaterial (§ 323 (5) sentence 2 BGB), and accident-car status is no trifle. The OLG Köln stressed two points. First, repair (Nachbesserung) cannot remove the car’s status as an accident vehicle — this defect is incurable. Second, with numerous repainted components the damage is in any event not immaterial, and the dealer had not even argued that the loss of resale value was negligible.
For buyers this is an important practical point: with an incurable defect of this kind, rescission does not fail for want of a prior repair request. As a rule we still recommend the classic sequence — written notice of the defect, demand for cure, only then rescission. It is the safest course in evidential terms, and since 2022 consumers no longer need to set a formal deadline anyway (§ 475d (1) BGB).
How is the unwinding calculated — trade-in car and kilometres driven?
After rescission each party returns what it received (§ 346 (1) BGB): the buyer hands back the car, the seller refunds the price. Two features of the Cologne case come up constantly in practice.
First, the traded-in old car. A buyer who traded in his previous vehicle can in principle demand the return of that very car in kind — not payment of the agreed trade-in allowance (OLG Hamm, judgment of 18 December 2008, 28 U 17/08). If the dealer has already resold the old car, return in kind is off the table and the buyer receives monetary compensation for its value (§ 346 (2) sentence 1 no. 2 BGB). In the Cologne case that was the full 5,000 euros credited on the trade-in.
Second, compensation for use (Nutzungsersatz). The refund is reduced for the kilometres driven, usually on a straight-line basis: price × kilometres driven / expected remaining mileage. In line with its settled practice the OLG Köln assumed a total vehicle life of 300,000 km. The buyer had driven 5,400 km, so the deduction came to 11,999 euros × 5,400 km / 188,000 km of remaining mileage = 344.65 euros. The bottom line: the dealer had to repay 11,999 − 344.65 = 11,654.35 euros (including the 5,000 euros as compensation for the resold trade-in car), and the buyer returned the vehicle.
Bought a defective car in Germany and considering rescission? We handle such cases in English, German and Polish — from the letter to the seller through to court. Details on our page about a defective car from Germany. Different rules apply to company purchases — see our article on warranty exclusions in B2B deals.
The dealer points to ticked boxes in the contract?
Check the clause content: concrete damage named (what, where, to what extent) or only „possible accidents” and an „unknown history” — blanket wording is ineffective. Check the form: the deviation must be highlighted and separately signed, a checkbox in a form (let alone a pre-ticked one) is not enough. Secure the contract, the advertisement (screenshot!), correspondence and the handover protocol. Have the paintwork and vehicle history checked — coating thickness, repainting, filler traces. Notify the seller of the defect in writing and demand cure, a formal deadline is not required (§ 475d (1) BGB) but setting one is safer. Traded-in old car — demand its return in kind, or monetary compensation if it has been resold. Watch the clock: warranty claims are generally time-barred two years after handover (§ 438 (1) no. 3 BGB).
Frequently asked questions
I ticked the boxes about „possible accidents”. Have I lost my rights?
No. According to the OLG Köln (judgment of 9 April 2025, 11 U 20/24), clauses about „possible” accidents describe no concrete characteristic of the car and merely shift the risk of hidden defects onto the consumer — a circumvention of the law (§ 476 (4) BGB). Only specific notification of a concrete deviation plus separate consent would be effective (§ 476 (1) sentence 2 BGB).
The seller says he did not know the car’s history himself. Does that excuse him?
No. Liability for defects does not depend on the seller’s fault or knowledge. A trader who does not know the condition of the vehicle bears the risk of hidden defects vis-à-vis the consumer — which is exactly why he cannot shift that risk onto the buyer by a clause.
The car drives fine after repair. Can I still rescind?
Yes, if it was sold to you without effective disclosure of the accident history. Repair does not remove the car’s status as an accident vehicle, and the market values accident cars lower (loss of resale value). Immateriality of the defect, which would bar rescission (§ 323 (5) sentence 2 BGB), is out of the question with numerous repainted components.
I traded in my old car. What happens to it after rescission?
In principle you can demand the return of your car in kind, not payment of the trade-in allowance (OLG Hamm, judgment of 18 December 2008, 28 U 17/08). If the dealer has already resold it, you are entitled to monetary compensation (§ 346 (2) sentence 1 no. 2 BGB) — in the Cologne case the full 5,000 euros.
How much is deducted for the kilometres I drove?
Usually on a straight-line basis: price × kilometres driven / expected remaining mileage. In the Cologne case — price 11,999 euros, 5,400 km driven, assumed total life 300,000 km — the deduction was 344.65 euros. The less you drive after discovering the defect, the smaller the deduction.
I live outside Germany. Can you handle the case remotely?
Yes. We handle disputes over cars bought in Germany in English, German and Polish, correspondence with the seller and the court is electronic, and you can send us all documents online.
Sources: OLG Köln, judgment of 9 April 2025 — 11 U 20/24 (no leave to appeal). LG Bonn, judgment of 16 February 2024 — 19 O 165/23. BGH, judgment of 10 October 2007 — VIII ZR 330/06. OLG Hamm, judgment of 18 December 2008 — 28 U 17/08. Explanatory memorandum: Bundestag printed paper 19/27424, p. 42. §§ 323, 346, 434, 437, 438, 442, 474, 475, 475d, 476 BGB.