The VW buyer may return the seller and return the purchase price due to software installation that produces a low exhaust gas level on the bench. The Higher Regional Court in Vienna made this decision in the second instance. The seller of the car, who was skeptical, sees the verdict (3 R 38/18 g) as an isolated case and appeal.
In 2012, the woman bought € 26,500 with a daytime golf course. In the year 2015, it became known that VW had installed special software on some engines, including that of the Golf model, which resulted in smaller emissions on the test bench than in real road traffic. As a result, the plaintiff, represented by the Poduschka law firm in Linz, allegedly lost his confidence in VW and claimed a purchase price minus the "fee for use" for mileage – plus interest. In total, that's about 29,000 euros.
Without this software, the car on the test table would not meet the emission standards and therefore would not get approval, the court ruled, because "installing unauthorized software would not make sense even if the relevant limitations were disregarded. .. there is no need for any technical competence, but only for the general experience of life, "the verdict states.
After the buyer unconsciously put an emphasis on an ecologically acceptable car and asked his husband, a technician, to carefully look at technical data, the Vienna Commercial Court as the first instance (Judgment: 23 Cg 67/15) assumes that a woman did not use a car they bought it, they would know about tricky software, now they ruled the Higher Regional Court in Vienna. It should be considered as "normally taken over" that the car complies with the limit values foreseen in the standard (in this case: Euro 5). If this is only possible with an unauthorized switch-off device, then it can be assumed that there is material defect.
And this lack of material was also not insignificant since the promising emission standard was only to be achieved with illegal software, it was mandatory to handle the threat of the loss of registration, the release of the improved software took a good year and the customer to correct only that company who originally built an illegal defragmenter . Also "it is clear that the prosecutor would not buy the vehicle in knowing the built-in software for transmitting," he said in the ruling.
Finally, the plaintiff has the right to "conversion" or money, as it would be unreasonable for him to repair the same company selling the vehicle with an illegal extinguisher, according to a higher regional court in Vienna.
Disputes of distributors
Porsche Holding believes that the decision of the Higher Regional Court in Vienna has "missed" it against the representation. The car is still safe in traffic and operational, and does not endanger it in any way, so there is "no basis for reversing the purchase agreement," he said at the APA request in Porsche Holding's announcement. It is a "minority opinion", "involved representatives naturally appeal to that verdict." Only recently, the higher regional courts in Vienna, Innsbruck and Linz have decided in similar cases in favor of the defendants. "38 judgments of the four higher regional courts (Vienna, Linz, Graz and Innsbruck) have so far been issued in Austria, 33 of these verdicts have so far confirmed the position of traders and manufacturers and have rejected the claims of the vehicle owners."
The Higher Regional Court in Vienna (OLG Wien) approved in its verdict a regular review because the decision, due to the large number of proceedings pending on the "VW scandal", was important outside the individual case.
From the point of view of Alexander Holzleitner, the administrative partner of the law firm Poduschka, however, the statements of the Higher Regional Court in Vienna apply in principle to every damaged car buyer. It's a good thing, "That the installation of an unauthorized switch-off device gives you the right to a turnaround and victims do not have to resort to updating the software." Also make the verdict clear, "that after a general life experience, the consumer is unaware of a manipulated vehicle."
The law firm Poduschka also considers the unusual calculation of the "residual values" of the vehicle to be a great success. It claimed that Golf could drive 250,000 km, and a customer of only 25,000 km or ten percent switched – the residual value is therefore 90 percent of the purchase price. The Commercial Court in Vienna and the Vienna Superior Regional Court confirmed this method of calculation. According to commercial listings, the car loses about half its value in the first three years.