Engine failure ten days after purchase — three thousand kilometres from the workshop
The buyer purchased a used BMW X3 from a German car dealer for 7,900 euros. Ten days later, on holiday in Turkey, there was a bang at 120 km/h and the engine died. A local workshop found metal shavings in the oil filter — the engine was beyond repair.
The dealer demanded that the car be presented at his premises in Germany. He refused to fund the transport from Turkey and offered only to collect the vehicle from the buyer’s home address in Germany. So the buyer arranged the transport himself and paid 2,354.31 euros. The dealer replaced the engine, but labelled it a goodwill gesture (Kulanz) and even invoiced the buyer 208.48 euros, which the buyer paid subject to reimbursement (unter Vorbehalt).
First instance says no, appeal says yes
The Local Court of Saarlouis awarded only the refund of the 208.48 euros. In its view, given the enormous distance, demanding repair at the seller’s seat was unreasonable for the buyer — he should have had the car repaired locally and claimed those costs as damages.
The Regional Court of Saarbrücken saw it the other way round (judgment of 22.01.2021, 13 S 130/20). The buyer recovered the full transport costs — 2,354.31 euros plus interest — and an additional 334.75 euros for pre-litigation attorney fees. The seller also had to bear the costs of the entire lawsuit.
Repair under the statutory warranty must be free of charge for the buyer
The basis is § 439(2) BGB: the seller bears the expenses required for repair or replacement — the statute expressly lists transport, travel, labour and material costs. The place of repair (Erfüllungsort der Nacherfüllung) is, as a rule, the seller’s place of business, which follows from the general rule of § 269(1), (2) BGB — so the Federal Court of Justice in its judgment of 19.07.2017 (VIII ZR 278/16). At the same time, EU law requires that bringing the goods into conformity be free of charge and without any significant inconvenience to the consumer — so the ECJ in its judgment of 23.05.2019 (C-52/18).
German law combines both requirements in a simple mechanism: the buyer delivers the car where the seller demands, but at the seller’s expense — and may request an appropriate advance payment up front. At the time of the case the advance followed from BGH case law, and since 1 January 2022 the consumer’s right to an advance on transport costs is written directly into the statute (§ 475(5) BGB).
The transport cost advance — the tool that makes the difference
Four practical lessons follow from the judgment.
- Before you pay for a tow truck yourself, demand an advance on the transport costs from the seller (§ 475(5) BGB).
- Refusing a justified advance puts the seller in default (Verzug, § 286 BGB). From that moment he is also liable for your lawyer’s fees — here 334.75 euros.
- Even if the car has not been transported yet because the advance never arrived, your repair demand remains fully effective (BGH VIII ZR 278/16). The seller’s inaction does not cost you your rights.
- The argument that a dealer „cannot refund transport from anywhere in the world” failed. His protection against excessive expenses is the defence of disproportionate costs (§ 439(4) BGB), assessed case by case. Here it went nowhere: the car was worth 7,900 euros, the defect made it entirely unusable, and the repair itself (5,125.25 euros) was covered by an external warranty provider.
The presumption of a defect — today it runs for a full year
The seller argued there was water in the engine, so the buyer must have overheated it. The court was not convinced. In a consumer sale, a defect that shows up within a defined period after handover is presumed to have existed at the time of purchase — and it is the seller who must prove otherwise. At the time of that case the period was six months, and since 1 January 2022 it is a full year (§ 477(1) BGB). An engine failure after ten days fell within it with room to spare. We cover the burden of proof in detail in our article on a car from Germany breaking down after purchase.
Watch out for the word „Kulanz” on an invoice. A repair under the statutory warranty is the seller’s obligation, not a favour — and he may not charge for it. If you pay a disputed invoice, always do so subject to reimbursement (unter Vorbehalt), as the buyer did here.
Living abroad, car bought in Germany?
This judgment matters most to buyers from abroad. If the seller had to bear the transport costs from Turkey, the same logic covers a tow truck from Poland, the Netherlands or anywhere else to the German workshop. Step by step:
- report the defect in writing (Mängelanzeige) and set the seller a reasonable deadline for repair,
- demand an advance on the transport before paying for it yourself,
- document everything: the workshop diagnosis, transport invoices, all correspondence,
- pay disputed invoices only subject to reimbursement,
- do not commission a local repair without setting a deadline first — only after the deadline passes or the seller refuses may you claim the costs of a substitute repair as damages or withdraw from the contract without further deadlines (§ 475d(1) BGB),
- watch the clock: warranty claims become time-barred, as a rule, two years after delivery of the car (§ 438(1) no. 3, (2) BGB).
Claiming a defective car against a German seller
Written notice of defect with a repair deadline. A demand for a transport cost advance (§ 475(5) BGB) before you pay for the tow truck yourself. Documentation: workshop diagnosis, invoices, photos, correspondence. Disputed payments only subject to reimbursement (unter Vorbehalt). If the seller stalls or refuses: withdrawal from the contract, price reduction or a substitute repair plus damages. And keep an eye on limitation — two years from delivery of the vehicle.
Frequently asked questions
Do I have to deliver the car to the seller’s workshop in Germany?
As a rule yes — the place of repair is usually the seller’s seat (§ 269 BGB). But it happens at his expense. You may make the transport conditional on an advance payment and you lose no rights by doing so.
Who pays for the tow truck from abroad to Germany?
The seller. Transport costs for the repair are expenses the law assigns to him (§ 439(2) BGB). The Regional Court of Saarbrücken awarded transport costs even from Turkey.
The seller refuses the advance. What now?
Demand it in writing with a deadline. An unjustified refusal puts him in default (§ 286 BGB) — from then on he is also liable for your lawyer’s fees. You may then lay out the transport costs and claim them back, as the buyer in this case did.
The seller calls the repair „goodwill” and sends an invoice.
Do not accept that framing. If the defect existed at handover — and within the first year the presumption works in your favour — the repair is the seller’s duty and free of charge. An invoice paid subject to reimbursement can be recovered.
How much time do I have?
Claims become time-barred, as a rule, two years after delivery of the vehicle (§ 438(1) no. 3, (2) BGB). A defect appearing within the first year is presumed to have existed at purchase (§ 477(1) BGB).
Can I just repair the car at home and send the seller the bill?
A risky shortcut. Without a prior deadline the seller can refuse reimbursement — his right to cure comes first. A substitute repair is an option only after a fruitless deadline or a clear refusal (§ 475d(1) BGB).
Sources: LG Saarbrücken, judgment of 22.01.2021 — 13 S 130/20. BGH, judgment of 19.07.2017 — VIII ZR 278/16. ECJ, judgment of 23.05.2019 — C-52/18. §§ 438, 439, 475, 475d, 477 BGB.