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.