Price increases for new car orders after order confirmation.

In times of the global pandemic, many things are getting mixed up, car manufacturers are struggling with material bottlenecks and are increasingly unable to meet the agreed delivery dates. But is it also permissible to unilaterally increase the purchase price to the consumer after an order confirmation?

The specific case:

The customer ordered a Citroen motorhome from a well-known motorhome manufacturer “P…l” via a dealer in October 2020. The dealer confirmed the order with reference to its terms and conditions of sale, which were handed out separately.


The dealer’s order confirmation contained, among other things, the reservation of self-delivery by the manufacturer with the following wording:



“Order confirmation subject to confirmation by the manufacturer”.



Subsequently, the buyer made the agreed down payment of approximately 10% of the purchase price to the dealer.

At the beginning of December 2021, the customer suddenly received an amended order confirmation from the dealer, which contained a unilateral price increase of 8,000 euros for an unchanged configuration of the ordered vehicle and was otherwise structured in exactly the same way as the previous confirmation, in particular also containing the reservation of self-delivery. January 2022 was stated as the non-binding delivery date.

The question now arose whether this unilateral price increase was permissible after the order confirmation in 2020.

However, this should not be the case; the amended order confirmation would rather have to be regarded as an offer to conclude a new purchase contract.

Accordingly, the customer would still have a claim to performance from the purchase contract concluded between him and the dealer in 2020.

There were no doubts as to the validity of the purchase contract, in particular the buyer and the seller had exchanged corresponding declarations, offer and acceptance, and had agreed on the essential elements of the contract.

Furthermore, the dealer did not reserve the possibility of a short-term price increase in his terms and conditions of sale. Moreover, such a clause could have been invalid under the conditions of § 309 no. 1 BGB.

The trader did not refer to the lack of availability. However, the reservation of self-delivery in the order confirmation (delivery only after confirmation by the manufacturer) is likely to be invalid according to § 308 No. 8 BGB. The order confirmation in the form of a form should be considered a general business condition, as it was intended and pre-formulated for repeated use by the user, which is already evident from the identical wording of the order confirmations from 2020 and 2021. The reservation is likely to remain ineffective because, contrary to the requirements of section 308 no. 8 BGB, it does not at the same time contain the user’s obligation to inform the contracting party without delay in the event of non-availability and to refund any deposits received without delay.

The concluded purchase contract therefore remains in force and the customer can demand performance on the terms agreed in 2020 as well as delivery on the announced date in January 2022.

What should you do?

If you find yourself in a situation similar to the one described above, you should not accept the amended order confirmation, which is basically an offer to conclude a new contract, but seek legal advice.

 
If you contact our law firm, you will not incur any costs for the initial assessment and, if necessary, for obtaining cover from your legal expenses insurance.

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