Termination of Leasing Contract
The Higher Regional Court of Braunschweig (OLG Braunschweig) has ruled that the lessee is generally entitled to repayment of the leasing instalments already paid if the leasing contract for a car is to be cancelled.
On the other hand, the lessor, i.e. the party that provided the car, can claim compensation for use for the kilometres driven in the meantime.
The facts of the case were as follows:
The plaintiff company obtained a reversal of the leasing contract with the defendant lessor due to a defect in the vehicle it had leased, the Audi A6 Avant 50 TDI quattro tip-tronic, and subsequently demanded repayment of the leasing instalments paid from the lessor. For its part, the defendant offset the compensation for use and claimed 0.67% of the new price per 1,000 km driven, whereby this lump sum was based on the expectation of a total mileage of the vehicle of 150,000 km. This percentage factor had been entered by the intermediary car dealer in a form provided by the defendant and signed by the plaintiff's managing director upon return of the vehicle. On this form, under "Percentage factor: 0.67%", there was another field "Compensation for use", which the car dealership had not filled in. The defendant claimed that the "percentage factor" had been legally determined by the signature of the plaintiff's managing director.
The senate decided that this agreement was not valid. Contrary to the assumption of the Regional Court of Braunschweig, the signed declaration was a matter of general terms and conditions which the defendant had unilaterally laid down for a large number of contracts. In order to protect the contracting party from the unilateral use of the power to form contracts, general terms and conditions are in principle subject to restrictions on content and must be formulated in a clear and comprehensible manner. Although there is no control of the content of a price or calculation agreement, the defendant had violated the requirement of transparency pursuant to § 307 (1) sentence 2 BGB because only the field "percentage factor" and not the field "compensation for use" had been filled in. The wording did not allow any conclusion that it formed the basis for the calculation of the compensation for use. Furthermore, it was not recognisable to which reference points the percentage factor referred. Nor could a managing director of a trading company be expected to have present knowledge of the details of the calculation of a compensation for use.
In the end, the senate applied the "linear calculation method" to the compensation for use. Here, the purchase price of the vehicle is set in relation to the expected remaining mileage and multiplied by the buyer's actual mileage. The Senate estimated the total mileage at 300,000 km, taking into account the statistical average for the vehicle in dispute. The consideration of the higher total mileage ultimately led to a considerable reduction of the claimed compensation for use.
The decision is legally binding.
Source: Press release of the OLG Braunschweig No. 10/2022 of 08.03.2022
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