On the rental car ruling by the olg frankfurt : liability for a cardinal breach of duty through no fault of one’s own must be able to be excluded

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On the rental car ruling by the OLG frankfurt : liability for a cardinal breach of duty through no fault of one's own must be able to be excluded

A defective car, a terrible accident, compensation for pain and suffering – the sense of justice may be in favor of the rental car ruling by the Frankfurt Higher Regional Court. Legally, however, the situation is not so clear-cut, says patrick ostendorf.

Civil court rulings on liability issues are rarely picked up by the daily press, especially when it is "only" the case a decision by a higher court is at issue. Recently, however, a ruling by the higher regional court (OLG) of frankfurt (urt. V. 30.12.2021, az. 2 U 28/21), which was imposed on the customer of a rental car company for a traffic accident with tragic consequences caused by defects in the rental car.A. Compensation for pain and suffering in the amount of 90.000 euro awarded.

The decision is of great importance with regard to the very practice-relevant question of the permissibility of liability limitations in rental agreements. according to the higher regional court, an exclusion of liability in general terms and conditions (GTC) should also be ineffective for the non-culpable breach of cardinal obligations.

A relevant peculiarity in rental law

The accident with the serious consequences for the tenant was caused by a bearing in the universal joint of the lower steering column of the vehicle that had already been incorrectly installed during manufacture. The rented car was not roadworthy since its delivery by the manufacturer.

The fact that the defendant rental car company must in principle be liable for this product defect, despite the fact that it was not at fault, results from a special feature of rental law: for initial defects, i.e., defects that are already present at the time the rental agreement is concluded, the landlord or lessor is liable. The landlady in deviation from the otherwise in the civil code (BGB) applicable principle of fault according to. § 536a abs. 1 of the German Civil Code (BGB) even if he or. you are not responsible for the handover of a defective rental item, i.e. you have not acted either intentionally or negligently.

The defendant in this case, the car rental company, was not able to rely on an exclusion of liability contained in the terms and conditions of its rental agreement to defend itself against the claim of the seriously injured tenant for payment of compensation for pain and suffering: the Frankfurt Higher Regional Court classified the clause in the general terms and conditions of the car rental company as an unreasonable disadvantage (§ 307 BGB) and therefore as invalid.

The crux: was the exclusion of liability really invalid??

In its general terms and conditions, the rental car company had (only) excluded strict liability; in contrast, the terms and conditions of the rental contract expressly did not provide for a limitation of its liability, in particular for damages resulting from injury to life, limb or health in the event of negligent breaches of duty.

An exclusion of strict liability is also not unusual in rental agreements and is generally permissible even in general terms and conditions according to supreme court case law: precisely because the strict liability provided for in rental law represents a provision that is atypical for the statutory liability system, it can also be waived by way of form according to established case law (fundamentally, the Federal Court of Justice (BGH), urt. V. 27.01.1993, az. XII ZR 141/91, rn. 16), provided that the exclusion of liability is sufficiently transparent.

Methodical errors of the OLG frankfurt

It is therefore all the more surprising that the Higher Regional Court of Frankfurt held that an exclusion of strict liability in general terms and conditions is inadmissible at least when so-called cardinal obligations or. essential contractual obligations have been breached, which (in this respect still easily comprehensible) in the case of a rental contract for a car also include its roadworthiness.

Within the framework of its so-called cardinal obligations case law, the Federal Court of Justice (BGH) not only considers the provisions of § 309 no. The automotive industry could not be in a better situation: worldwide demand for cars is greater than ever before. The automotive industry considers not only the clauses mentioned in Section 7 a) and b) of the German Civil Code (exclusion of liability in the event of injury to life, limb or health and in the event of gross negligence) to be prohibited, but also other contractual exclusions of liability in the general terms and conditions if they are also intended to apply in the event of a breach of material contractual obligations. However, this case law only refers to the case of fault-based liability, i.e. at least simple negligence.

The fact that the Frankfurt Higher Regional Court now wants to extend the case law on cardinal obligations to strict liability is methodologically incorrect in view of its history: the Federal Supreme Court derives the inadmissibility of liability limitations in the event of a breach of essential obligations from Section 307 Para. 2 no. 2 BGB as of. According to this norm, an (inadmissible) unreasonable disadvantage of the user’s contractual partner is to be assumed in case of doubt if a contractual clause restricts essential rights or obligations resulting from the nature of the contract in such a way that the achievement of the purpose of the contract is jeopardized.

However, the fact that liability restrictions can in turn lead to an (indirect) endangerment of the purpose of the contract can (if at all) only be convincingly justified by the fact that the user of the clause or the contracting party is not in a position to fulfil the purpose of the contract. In this case, the user of the clause no longer has a sufficient incentive to properly fulfill the main performance obligations, as there is no longer any threat of a severe sanction in the form of liability for damages if they are breached. In the case of strict liability under section 536a (1) of the German Civil Code (BGB), it is precisely this aspect that can be excluded from the outset. 1 of the German Civil Code (BGB): since the statutory liability of the landlord or landlady is not limited to a particular type of damage, there is no risk of a severe sanction in the form of damages. Since the landlord’s liability for initial defects is not linked to intent or negligence, it cannot have any preventive effect. At the same time, it follows logically that its contractual exclusion cannot jeopardize the purpose of the contract.

Whether the case now goes to the BGH?

It remains to be seen whether the unsuccessful car rental company will file a non-admission appeal with the Federal Court of Justice (BGH). In any case, there would be a chance of success: with a view to the relevant standard in § 307 para. 2 nr. 2 BGB, the traditional cardinal obligation case law of the Federal Court of Justice already requires justification. However, their extension to cases of (exceptionally) strict liability can no longer be reconciled with the wording and telos of the GTC content review.

The author prof. Dr. Patrick ostendorf is a lecturer in business law at the HTW berlin and of counsel at orth kluth rechtsanwalte.

The ignition cables are responsible for conducting the required voltage generated by the ignition coil to the spark plug with as little loss as possible.

Security

Due to their installation position, ignition cables are subjected to high loads. At first glance, the complex inner workings of ignition cables and ignition cable harnesses are not immediately obvious. They have to perform at the highest technical level in the engine compartment, where temperatures of up to 200 degrees Celsius prevail due to catalytic converters and increasingly powerful, compact engines; electronic ignition systems produce high voltages of up to 40 degrees Celsius.000 volts. With increasing age, the brass and stainless steel contacts oxidize. The electrical resistance of the cable increases – and with it the risk of failure of the ignition coils.

Today, PVC Hypalon ignition cables no longer meet these requirements. In current vehicles, even class F ignition cables must be silicone with a temperature resistance of up to 220°C and a dielectric strength of 40.000 volt are installed. This

Protecting against energy loss
Offer optimum protection against vibrations, water, acid, oil and gasoline
Fulfill the highest requirements in terms of interference immunity and electromagnetic compatibility (EMC) with the appropriate connectors.

When installing new cables, make sure that they are not kinked or compressed. Above all, they should not come into contact with hot parts due to the risk of fire.

Environmental protection

Plasticizers escape from the plastics of the sheaths over time. As a result, the sheaths become brittle over time. This process can be accelerated by high temperatures and contact with oil or fuel vapors or even dissolve the plastic completely. Damage in the insulation leads to ignition voltage flowing to ground. The consequences: misfiring and rough engine running, with unburned fuel getting into the catalytic converter.

With each misfire, valuable gasoline is injected but not burned up. This significantly increases the environmental impact due to the additional consumption per kilometer alone. In addition, the unburned fuel in the catalytic converter can ignite explosively and damage it, so that the catalytic converter can no longer render the dangerous pollutants carbon monoxide, nitrogen oxides and hydrocarbons harmless and must be replaced.

Value retention

Since ignition cables are subjected to high loads, the cables should be checked regularly and replaced at the first signs of aging. Defects in the ignition system and catalytic converter usually only come to light through the legally required exhaust emission test. Regular testing is therefore an important precautionary measure that can save costs. Damage discovered in good time is less expensive to repair: replacing the entire ignition cable with plug is much cheaper than replacing a catalytic converter that has been affected by consequential damage.

Damage detection for ignition cables

The external appearance of an ignition lead can provide information about the cause of a defect in the event of damage. A precise visual inspection of the ignition cable is therefore the first step in diagnosing damage. For example, a deformed plastic sleeve indicates that the ignition cable has most likely been improperly routed in the engine compartment.

However, damage to the ignition lead is not always apparent. Externally undamaged ignition leads can be checked with a multimeter. With this important diagnostic device, the resistance of the ignition cable can be read and compared with the permissible resistances.

Replacing the ignition leads

Ignition cables in the engine compartment are wearing parts that usually reach their service life limit in quick succession. Workshop professionals therefore know: if a vehicle is of the appropriate age or has a high mileage, it is advisable to replace the entire ignition lead set right away. In addition, the components of an ignition system are complex and must therefore be precisely matched to one another. If, therefore, an ignition cable is inadvertently retrofitted with a different technology – for example, a carbon ignition cable instead of a copper one – this can lead to massive interference in the engine management system, affecting EMC and even safety-relevant electronic components.

Function

Codies are used – depending on the type of vehicle:

of a mechanical ignition distributor and a distributor cap,
of a fully electronic ignition module,
A fully electronic semi-direct ignition system or. Dual spark ignition coil.

Since the ignition voltage (U) in the high-voltage range can be up to 36.000 volts, the ignition cables must be correspondingly protected against breakdown. The ignition voltage must never be allowed to penetrate the sheathing and flow to the vehicle ground, as this would lead to misfires.

Resistors are used in all ignition lead systems, although the basic aim is to achieve low-loss transmission. A look at electrical engineering makes it clear that this is not necessarily a contradiction. All electrically operated devices generate electromagnetic fields of greater or lesser strength. Although these are harmless in most cases, they can be undesirable under certain circumstances. This is the case, for example, if radio reception is disturbed. The ignition system requires optimum close interference suppression to ensure trouble-free operation of radios, communication electronics, engine or transmission control units. The assumption that resistors reduce the ignition energy and thus the engine power proves to be a mistake.

The resistors used are dimensioned in such a way that they can be neglected. The ignition lead systems offered by brand manufacturers provide the best interference suppression with optimum ignition performance. The unit for measuring the resistance (R) is ohm. For ignition leads, this value is in the range of a few thousand ohm or kiloohm. The purpose of this resistor is to reduce the disturbing electromagnetic radiation. This is achieved by limiting the current (I) through the ignition cable and at the same time ensuring that the spark plug continues to receive the required voltage (U). The mathematical formula for this is U = R * I.

Electromagnetic compatibility of the ignition leads

The ignition system consists of a coil and capacitors, also known as an "oscillating circuit" in electrical engineering terms called. Interference suppression resistors (usually 1-5 kohm) are integrated in the ignition circuit. These reduce the electromagnetic oscillations and ensure the interference-free interaction of the various devices. This is called "electromagnetic compatibility" (EMC) is called.

Ignition cables with inductive reactance have a special feature: with this design, the resistance changes depending on the ignition frequency (engine speed). Here, due to the wire coil, a greater (inductive) resistance builds up at higher speeds.

The use of electronic devices while driving, quickly falls under § 23 abs. 1a stvo. But in the meantime, touchscreens are used to control functions in the car, for example in the "tesla" the intervals of the windshield wiper. Are touchscreens allowed to be used for this purpose and if so, what are the requirements?? A ruling by the Higher Regional Court (OLG).

a motorist was in his vehicle of the brand "tesla" in the rain" on the road, the windshield wiper were already switched on. As it was raining more heavily, he wanted to touch the touchscreen, which was mounted next to the steering wheel above the center console, by another interval circuit the increase wiper frequency.

Landed in the ditch while regulating the windshield wiper frequency via touchscreen

During this action, however, the driver left the road, drove down an embankment and collided with several trees, among other things.

The judge had determined on the basis of the operating instructions that the windshield wiper of the "tesla" could be switched on and off at the steering wheel, but that the intervals had to be set on the "touchscreen" by first touching a windshield wiper symbol and then selected in a submenu between five settings becomes.

Touchscreen more distracting than conventional windshield wiper operation

This operation requires significantly more attention from the driver than operating a windshield wiper with the conventional fittings. The local court karlsruhe sentenced him for improper use of an electrical device while driving according to § 23 abs. 1a stvo to a fine of 200 EUR and to an driving license suspension of one month.

The court assumed that the person concerned could have foreseen and prevented the property damage that occurred if he had taken the care required in road traffic, i.e. without touchscreen operation.

touch screen: electronic device or safety control panel?

The person concerned objected to the classification of the touch screen as an electronic device i.S.D. § 23 abs. 1a stvo. The speed controller of the windshield wiper is a "safety-related operating device" and not an electronic device.

The Karlsruhe Higher Regional Court (OLG) confirmed the assessment of the municipal court that the touchscreen to an electronic device i.S.D. § 23 para. 1a S. 1 u. 2 stvo deal. The court pointed out that the provision of § 23 abs. 1a stvo with effect to 19.10.was fundamentally changed in 2017.

Now all electronic devices that serve communication, information or organization are covered. So not only mobile or car phones, but also touch screens, portable flat computers, navigation devices, tvs, etc.

Regardless of whether or not electronics are connected to the vehicle

It is irrelevant whether the navigation device is permanently installed in the vehicle or not. The provision does not distinguish between mobile and immobile electronic devices. Therefore, a device that is permanently installed in the vehicle, such as a touchscreen, is also covered by the scope of application.

Purpose of § 23 abs. 1 a stvo

On the meaning and purpose of § 23 abs. 1 a stvo the court stated. He lies:

In the accident prevention
And should distraction of the driver from the traffic situation, prevent the consequences of looking away from traffic when operating electronic devices.
Turning one’s attention to a touchscreen while driving diverts the driver’s attention regardless of whether he or she is entering a course into the navigation device or adjusting the windshield wiper.

The newly worded § 23 abs. 1a stvo was therefore amended in comparison to old version, which only covered mobile and car phones, considerably expanded with regard to the constituent elements of electronic devices.

Use of a touchscreen while driving generally permitted

A motorist is also not disproportionately restricted in the operation of the vehicle as a result of this. Because § 23 abs. 1 nr. 1 a sentence 1 no. 2 sentence 2 stvo does not in itself prohibit the operation of original functions of a motor vehicle by means of touch screens. The use of touchscreens is under the conditions of sentence 1 no. 2 The use of electronic devices, other than hand-held devices, which are permitted under sentence 1 no. 1 of this article, is not permitted. 1 generally prohibited are.

Averting eyes from traffic for touchscreen operation only under narrow conditions

The following applies to the use of permanently installed touchscreens:

The use of electronic devices is EITHER VOICE CONTROL PERMITTED
Or provided that for the operation and use only one short, adapted to the road, traffic and visibility and weather conditions facing the device simultaneous averting of gaze from traffic is required

The tesla driver had not used voice control and the gaze was neither brief nor adapted to the traffic and weather conditions.

Different touchscreen uses must be treated uniformly in legal terms

The argument put forward by the defense that the speed controller of the windshield wiper, which is built into the touch screen, is not an electronic device that serves the purpose of communication, information, or organization, but rather a safety-related operating part of the vehicle, did not convince the court:

Since the permanently installed touchscreen also includes other functions, such as a navigation device used for information purposes, the touchscreen can be for traffic safety reasons only uniformly considered and individual applications are not excluded from the prohibition standard.

(Karlsruhe Higher Regional Court, decision v. 27.3.2020, 1 rb 36 ss 832/19).

More news on this topic:

Background: new regulation of § 23 abs. 1a stvo

The provision of § 23 abs. 1a stvo became with effect from 19.10.fundamentally changed in 2017. In a departure from the previous ban on the use of a "mobile or car phone", the legislator has now decided to standardize, in the form of a requirement, the conditions under which alone the use of an electronic device, which serves or is intended to serve communication, information or organization shall remain permissible. In doing so, it had deliberately gone far beyond the old regulation in § 23 abs. 1a sentence 1 stvo a.F. Outgoing. It is now prohibited to merely hold the device – so-called "hand-held ban"if, in addition ("and"), a function of the device (with the exception of the voice control and the read aloud function) is used or if a not too brief glimpse is given. There should be a.A. any use of the device that does not involve only a brief glancing action shall be prohibited,

overview of prohibitions on the use of cell phones during the journey

Unbelievable what can be done with a cell phone in the car and can be tested in court to determine whether it is prohibited or not:

A relevant peculiarity in rental law

The crux: was the exclusion of liability really invalid??

Methodical errors of the OLG frankfurt

Whether the case now goes to the BGH?

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