Used car dealer refuses repair in Germany: how the buyer recovered €7,535.57 for the repair — and why driving the defective car cost him the loss-of-use claim

What did the Frankfurt courts decide on repair costs and loss of use?

The buyer of a used car recovered €7,535.57 in repair costs from the dealer, but of the €122,325 he claimed as loss-of-use compensation (Nutzungsausfallentschädigung) he received only €350, for the two days the car spent in the workshop (Regional Court of Frankfurt am Main, Landgericht Frankfurt am Main, judgment of 6 March 2025, 2-12 O 32/24, BeckRS 2025, 41934). The Higher Regional Court of Frankfurt am Main (Oberlandesgericht) dismissed the buyer’s appeal by unanimous order and refused leave to appeal to the Federal Court of Justice (order of 11 December 2025, 9 U 44/25). A buyer who keeps driving a defective car “as usual” suffers no tangible economic loss, and without such a loss there is no loss-of-use compensation.

The buyer had bought the car, first registered in April 2018, from a used car dealer in June 2021. About a month after delivery, water appeared inside the right front headlight. A workshop consulted by the dealer found no defect, and goodwill requests to the manufacturer were rejected. After a deadline for remedying the defect passed without result, the buyer applied for independent evidentiary proceedings (selbständiges Beweisverfahren, § 485 (2) of the German Code of Civil Procedure, ZPO), a court-supervised expert examination outside a lawsuit. The court expert found that the headlight’s ventilation had failed, the fan’s circuit board had corroded and the car was not roadworthy because droplets in the headlight threatened to dazzle oncoming traffic. The buyer had the car repaired in June 2023, having driven it without any restriction for almost two years.

The real lesson of the case lies in the costs order. Because the buyer lost almost entirely on his inflated loss-of-use claim, he bears 93 per cent of the costs of the litigation, including the evidentiary proceedings (§ 92 (1) sentence 1 ZPO), even though he won on the core claim. We put a figure on that in the section on the cost trap.

Why did the dealer have to reimburse the repair costs of €7,535.57?

Because the car was defective at delivery and the dealer let the deadline for repair expire. The buyer could therefore claim damages in lieu of performance (Schadensersatz statt der Leistung, § 437 no. 3, § 440, § 280 (1), § 281 (1) of the German Civil Code, BGB) and pass the full workshop invoice on to the dealer. When a used car dealer refuses repair in Germany, the route to that result has three stages.

First, the defect. The contract from 2021 was still governed by the old law of sales (Art. 229 § 58 of the Introductory Act to the BGB, EGBGB). Under it, goods were free from defects if they were fit for the use presupposed by the contract (§ 434 (1) sentence 2 no. 1 BGB in the version in force until 31 December 2021). A car that is not roadworthy because of moisture in a headlight is not fit for driving on public roads. For contracts concluded since 1 January 2022, safety is expressly part of the usual quality a buyer may expect (§ 434 (3) sentence 2 BGB).

Second, the deadline. In December 2021 the buyer demanded by e-mail and registered letter that the dealer remedy the defect by 14 January 2022. The dealer remedied nothing and merely replied that its workshop had found no defect. The deadline under § 281 (1) sentence 1 BGB had thus expired without result. Consumers today can dispense with a deadline altogether in certain cases, for instance where the trader fails to carry out the repair within a reasonable period after being notified of the defect (§ 475d (1) no. 1, (2) BGB). Proof that the notice reached the dealer should still be secured by registered mail.

Third, the settlement of the bill. The buyer had the repair carried out and claimed the invoice. An advance payment towards repair costs, as known in the law of contracts for work and services (§ 637 (3) BGB), does not exist in the law of sales. The Higher Regional Court said so in terms:

„Der Kläger war zu keinem Zeitpunkt berechtigt, einen Vorschuss zur Mängelbeseitigung geltend zu machen. Dieser aus dem Werkvertragsrecht stammende Anspruch aus § 637 Abs. 3 BGB ist dem Kaufrecht fremd. Ihm standen hingegen Mängelgewährleistungsrechte aus § 437 BGB zur Verfügung, die grundsätzlich einen Vorrang des Nachbesserungsrechts des Beklagten vorsehen.“

“At no point was the claimant entitled to demand an advance towards remedying the defect. That claim, which originates in the law of contracts for work (§ 637 (3) BGB), is alien to the law of sales. What he did have were the warranty rights under § 437 BGB, which in principle give priority to the defendant’s right to repair.”

OLG Frankfurt am Main, order of 11 December 2025, 9 U 44/25 — own translation

The dealer’s objection that the buyer had altered vehicle settings with a diagnostic device and thereby forfeited his warranty rights failed. The terms of use of the diagnostic app were not an agreement between buyer and dealer, and in any event they concerned only guarantee claims against the manufacturer. The seller’s statutory warranty (Gewährleistung) and a manufacturer’s guarantee (Herstellergarantie) are two different things.

Who has to prove that the defect already existed at delivery?

In a consumer sale, the dealer, as soon as the defect appears within the presumption period. For the Frankfurt contract from 2021 that period was six months (§ 477 BGB in the version in force until 31 December 2021). For contracts concluded since 1 January 2022 it is one year from delivery (§ 477 (1) sentence 1 BGB). If the defective condition shows itself within that period, the goods are presumed to have been defective when the risk passed. The buyer need neither identify the cause nor prove that it lies within the seller’s sphere of responsibility. A consumer is anyone who buys the car mainly for private purposes (§ 13 BGB), a trader is anyone who sells it in the course of a business (§ 14 (1) BGB).

The presumption reaches further than many dealers assume. According to the Federal Court of Justice (Bundesgerichtshof, BGH), it is also presumed that a defective condition appearing within the period was already present, at least in its origins, at delivery, the so-called underlying defect (Grundmangel, BGH, judgment of 12 October 2016, VIII ZR 103/15, NJW 2017, 1093). In the Frankfurt case the photographs of the fogged headlight from July 2021, one month after delivery, were therefore enough. Whether the fan had failed permanently or only intermittently was not for the buyer to clarify.

The dealer must rebut the presumption in full (§ 292 ZPO):

„Eine bloße Erschütterung der Vermutung ist nicht ausreichend. Erforderlich ist vielmehr der volle Beweis des Gegenteils der vermuteten Tatsache.“

“Merely shaking the presumption is not enough. What is required is full proof of the opposite of the presumed fact.”

LG Frankfurt am Main, judgment of 6 March 2025, 2-12 O 32/24, BeckRS 2025, 41934, para. 33 — own translation

The dealer alleged that the buyer had accidentally switched off the fan while tinkering with the diagnostic device. Faced with such an allegation of improper handling, the consumer carries a secondary burden of explanation (sekundäre Darlegungslast): he must set out in concrete terms that he did not handle the goods improperly. The buyer managed that with the diagnostic log, which listed the settings he had changed but showed no intervention in the fan control. The ball was then in the dealer’s court. The dealer, however, failed to pay the advance on costs for the expert opinion ordered by the court and declared at the hearing that he was not pursuing his application for evidence (§ 379 sentence 2 in conjunction with § 402 ZPO). The presumption thus stood unrebutted. How the reversal of the burden of proof works in detail is explained in our article on the car from Germany that broke down after purchase.

Deleted fault memory: did the buyer spoil the evidence?

No, at least not in this case. The buyer had the car’s fault memory cleared shortly before the expert’s examination, according to him during a battery change carried out by an acquaintance. The dealer saw this as spoliation of evidence (Beweisvereitelung) and argued that the presumption under § 477 BGB should therefore not apply against him. The Regional Court rejected this because it was not established that the deletion had put the dealer at any evidential disadvantage at all.

According to the case law of the Federal Court of Justice, spoliation of evidence occurs where a party culpably makes it harder or impossible for the opponent bearing the burden of proof to produce evidence, for example by destroying or withholding existing evidence. The consequences are evidential relief for the opponent, up to a reversal of the burden of proof. The classic example is a buyer who has an allegedly defective part replaced at a workshop without instructing the workshop to keep it, as decided for the turbocharger of an eleven-year-old used car (BGH, judgment of 23 November 2005, VIII ZR 43/05, NJW 2006, 434).

In the Frankfurt case there was no impediment to begin with. The buyer had read out the fault memory regularly from the day after delivery and had produced the diagnostic log. On that basis the court had ordered a supplementary expert opinion, which did not take place only because the dealer did not pay the advance. The buyer’s motives were therefore no longer relevant. The practical lesson stands nonetheless: anyone asserting a defect must not allow anything to be done to the vehicle that obscures its condition. Removed parts must be kept, the fault memory read out and saved, and dated photographs taken.

Loss of use: why only €350 instead of €122,325?

Because the buyer had continued to use the car without restriction until the repair. Loss-of-use compensation requires a tangible economic disadvantage, and nobody who drives every day as usual suffers one. The court awarded only the two workshop days, 12 and 13 June 2023, at €175 each, €350 in total (§ 437 no. 3, § 440, § 280 (1) BGB).

Since the 1960s the Federal Court of Justice has recognised that the temporary loss of the ability to use a motor vehicle is a recoverable pecuniary loss even if the injured party does not hire a replacement car (BGH, judgment of 30 September 1963, III ZR 137/62, BGHZ 40, 345, and judgment of 15 April 1966, VI ZR 271/64, BGHZ 45, 212). The amount is assessed as a lump sum from tables that sort vehicles into groups. The Frankfurt buyer calculated with group L at €175 per day, for 699 days. The precondition is always that the owner wanted to use the vehicle in the period in question and was able to do so: the will to use (Nutzungswille) and the possibility of use (Nutzungsmöglichkeit) are indispensable (BGH, judgment of 26 March 1985, VI ZR 267/83, NJW 1985, 2471).

On top of that comes the requirement that the loss be “tangible” (fühlbar). The Federal Court of Justice demands that the injured party would really have needed the vehicle for everyday life for want of another suitable car:

„An einem fühlbaren Nutzungsausfall fehlt es daher, wenn dem Geschädigten ein weiteres Fahrzeug zur Verfügung steht, dessen ersatzweise Nutzung ihm zumutbar ist.“

“There is therefore no tangible loss of use where the injured party has another vehicle at his disposal whose use as a substitute can reasonably be expected of him.”

BGH, judgment of 11 October 2022, VI ZR 35/22, NJW 2023, 47, para. 12 — own translation

The Regional Court transferred this reasoning to the continued use of a defective vehicle. The buyer had admitted at the hearing that despite the lack of roadworthiness he had “carried on using the car quite normally (…) as usual”. The will to use and the actual possibility of use were therefore present, and legally he should not have been driving. That was not enough for the court:

„Der Voraussetzung eines fühlbaren wirtschaftlichen Schadens wohnt nämlich – wie mit dem Begriff „fühlbar“ zum Ausdruck kommt – ein reales Moment inne. Daran fehlt es, wenn der Geschädigte das nicht verkehrssichere Fahrzeug tatsächlich „wie sonst“, also ohne Einschränkung, weiter benutzt. Das hypothetische Argument, der Geschädigte hätte das Fahrzeug aus rechtlichen Gründen nicht benutzen dürfen, ist demgegenüber unerheblich.“

“The requirement of a tangible economic loss has, as the term ‘tangible’ conveys, a real element to it. That element is missing where the injured party in fact continues to use the unroadworthy vehicle ‘as usual’, that is without restriction. The hypothetical argument that the injured party would not have been allowed to use the vehicle for legal reasons is irrelevant by comparison.”

LG Frankfurt am Main, judgment of 6 March 2025, 2-12 O 32/24, BeckRS 2025, 41934, para. 58 — own translation

The buyer relied on a decision of the Regional Court of Nuremberg-Fürth (LG Nürnberg-Fürth, NJW-RR 2020, 1350), according to which no loss of use can be claimed for a vehicle that was already unroadworthy before the accident. The Frankfurt court distinguished the two situations: that case concerned the hypothetical possibility of use as a precondition of the claim. Where it is missing, there is no loss. The Frankfurt case concerned the opposite question, whether someone who in fact keeps using the vehicle without restriction can claim money merely because he should not have been using it. The answer is no. The Higher Regional Court confirmed this on appeal:

„Maßgeblich ist allein, ob dem Kläger tatsächlich keine Nutzungsmöglichkeit offenstand. Ein fühlbarer wirtschaftlicher Nachteil kann nicht darin liegen, dass der Kläger sein Fahrzeug nutzt, sei es auch nicht verkehrssicher.“

“The only decisive question is whether the claimant in fact had no possibility of use. A tangible economic disadvantage cannot consist in the claimant using his vehicle, even if it is not roadworthy.”

OLG Frankfurt am Main, order of 11 December 2025, 9 U 44/25 — own translation

In practice this means: anyone who wants to claim loss of use for a defective car must actually forgo its use, park the vehicle and document that decision. If there is a second car in the household, its reasonable use excludes the claim. Anyone who hires a replacement instead claims the hire costs as damages. And anyone who drives gets nothing, except for the days on which the car is actually in the workshop.

Loss of use (Nutzungsausfall) should not be confused with compensation for use (Nutzungsersatz), which works the other way round: the buyer pays the dealer for kilometres driven when withdrawing from the contract. How it is calculated is shown in our article on car purchase rescission in Germany.

When does default interest start to run, and why not from the notice of defect?

Default interest on the repair costs ran only from 18 February 2023, the day after the first quantified payment deadline expired. A demand to remedy a defect is not a demand for payment (Mahnung) of a money debt, and only a money debt bears interest during default (§ 286 (1) sentence 1, § 288 (1) BGB). In December 2021 the buyer had demanded a repair, not money:

„Mit der Aufforderung zur Mängelbeseitigung vom 23.12.2021 und 27.12.2021 wurde eine Geldschuld, nämlich die Bezahlung eines bestimmten Betrags, nicht begehrt.“

“The demands to remedy the defect of 23 and 27 December 2021 did not seek a money debt, that is payment of a specific amount.”

LG Frankfurt am Main, judgment of 6 March 2025, 2-12 O 32/24, BeckRS 2025, 41934, para. 51 — own translation

The lawyer’s letter of February 2022 did not help either, although a cost estimate of €4,990.68 was attached: it merely asked the dealer to acknowledge his duty to remedy the defect, not to pay. And the dealer’s e-mail that its workshop had found no defect was not a serious and final refusal to perform (§ 286 (2) no. 3 BGB), because the dealer offered at the same time to have the damage assessed at its own expense. Default occurred only when the lawyer demanded a quantified sum of €6,158 on 1 February 2023 with a deadline of 17 February 2023. On the remainder of the repair costs, interest ran from service of the claim on 25 January 2024 (§ 291 BGB).

The Higher Regional Court framed the same logic from the angle of the law of damages: the dealer’s refusal entitled the buyer “merely to have the repair carried out and then to claim the repair costs, or to settle on a notional basis”, and only with the buyer’s election on 1 February 2023 could the dealer be put in default (OLG Frankfurt am Main, order of 11 December 2025, 9 U 44/25, own translation). In passing, the Higher Regional Court corrected an arithmetical error of the Regional Court: interest from service of the claim is due on €1,377.57, not on €1,355.57 (§ 319 (1) ZPO).

The same limit applies to pre-litigation lawyer’s fees. The court awarded €713.76 calculated on a value of €6,158, that is only on the amount the lawyer had justifiably demanded before the lawsuit. Anyone who wants to start the interest clock early must send an early, quantified demand for payment with a deadline, if necessary on the basis of a cost estimate before the repair is carried out.

The cost trap: 93 per cent of the litigation costs despite winning the repair costs

The buyer bears 93 per cent of the costs of the litigation including the independent evidentiary proceedings, the dealer 7 per cent (§ 92 (1) sentence 1 ZPO). Measured against the value in dispute of €129,860.57, the buyer succeeded with €7,885.57, roughly six per cent. He bears the costs of the appeal in full (§ 97 (1) ZPO), and the Higher Regional Court set the fee value of the appeal at up to €125,000.

A sample calculation under the fee tables in force since 1 June 2025 shows what that means. At a value in dispute of up to €140,000, the first instance costs around €16,100 without an expert: €4,434 in court fees (a 3.0 fee under no. 1210 of the schedule of costs to the Court Costs Act, GKG) and two lawyers at €5,836.95 gross each (a 1.3 procedural fee and a 1.2 hearing fee under nos. 3100 and 3104 of the schedule of fees to the Lawyers’ Remuneration Act, RVG, plus expenses allowance and VAT). 93 per cent of that is around €14,980. Had the buyer sued only for the repair costs and the two workshop days, €7,885.57, the value in dispute would have fallen into the band up to €8,000. The first instance would then have cost around €3,930, and the dealer would have borne all of it.

The lesson: suing for 699 days of loss of use while driving the car every day is not a bargaining chip but a cost risk. The claim should be limited to what is actually enforceable under the principles of the Federal Court of Justice. Anyone unsure whether a claim will hold asserts it out of court first or sues for a partial amount, rather than inflating the value in dispute with a maximum demand.

What is different for contracts concluded since 2022?

Three points of the Frankfurt case would look different today, but not the outcome. First, the presumption period under § 477 (1) sentence 1 BGB has been one year instead of six months since 1 January 2022, so the headlight from July 2021 would fall within it comfortably. Second, under § 434 (3) sentence 2 BGB the safety of goods is expressly part of the usual quality a buyer may expect, so an unroadworthy vehicle is all the more defective. Third, a consumer no longer needs to set a deadline before claiming damages where the trader fails to carry out the repair within a reasonable period after notice of the defect (§ 475d (1) no. 1, (2) BGB).

The principles on loss of use have remained unchanged, because they come not from the law of sales but from the general law of damages (§ 249 et seq. BGB). Anyone who keeps driving the car receives no compensation under the new law either for the time spent driving. The priority of repair by the seller is also unchanged: the dealer may repair first, and the advance on costs known from the law of contracts for work does not exist in the law of sales. Which costs the dealer has to bear when carrying out the repair is shown in our article on the defective car from Germany and transport costs.

You bought a defective car in Germany and the dealer is not responding? We set the repair deadline correctly, secure the evidence, quantify repair costs and loss of use so that the claim does not blow up the cost risk, and conduct the proceedings in German and Polish. Details on our page on defective cars bought in Germany.

Frequently asked questions

Do I get loss-of-use compensation if I keep driving the defective car?
No. Loss-of-use compensation requires a tangible economic disadvantage, and there is none if you actually use the vehicle as usual (LG Frankfurt am Main, 2-12 O 32/24, confirmed by OLG Frankfurt am Main, 9 U 44/25). The fact that you should not have been driving in law changes nothing. Only the days on which the car was actually unavailable, for instance in the workshop, are compensated.

How much is loss-of-use compensation per day?
The courts estimate it as a lump sum from tables that sort vehicles into groups by type and age. In the Frankfurt case the daily rate for group L was €175. The rate applies, however, only to days on which you wanted to use the car, were able to use it and really went without it for want of a reasonable second car (BGH, judgment of 11 October 2022, VI ZR 35/22).

Does the dealer have to pay me an advance for the repair?
No. The advance on costs under § 637 (3) BGB exists only in the law of contracts for work. In the law of sales the dealer first has the right to repair (OLG Frankfurt am Main, order of 11 December 2025, 9 U 44/25). Only after a deadline has expired without result (§ 281 (1) BGB) or in the cases of § 475d BGB can you have the repair done yourself and claim the invoice as damages.

Who has to prove that the defect was already there at the time of purchase?
When buying from a dealer, the dealer, if the defect appears within one year of delivery (§ 477 (1) sentence 1 BGB). The presumption also covers the point that the cause was already present at delivery (BGH, judgment of 12 October 2016, VIII ZR 103/15). The dealer must rebut the presumption in full, merely shaking it is not enough.

May I clear the fault memory or have defective parts replaced?
Not without securing the evidence first. Anyone who culpably destroys evidence risks evidential relief for the dealer up to a reversal of the burden of proof (BGH, judgment of 23 November 2005, VIII ZR 43/05). Have the fault memory read out before any intervention, keep removed parts and photograph the condition with a date.

I live in Poland and bought the car in Germany. Can you handle the case?
Yes. We conduct warranty proceedings against German dealers in German and Polish, correspondence with the dealer and the court is electronic, and you can send us your documents online.

Basis: LG Frankfurt am Main, judgment of 6 March 2025, 2-12 O 32/24 (BeckRS 2025, 41934), appeal dismissed by OLG Frankfurt am Main, order of 11 December 2025, 9 U 44/25 (leave to appeal refused). This article is for information only and is no substitute for advice in an individual case.

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