What is a simple but satisfying thing

Supplementary performance through a new delivery when purchasing items; "Limitation" of the right of withdrawal according to §§ 438 IV, 218 BGB: Relevant point in time; Deceit and statements "in the blue"


BGH, judgment of June 7, 2006 - VIII ZR 209/05


Reference:

NJW 2006, 2839
BGHZ 168, 64


Official Guiding principle:

a) On the question of fraudulent deception in the case of a used car purchase by guaranteeing that the vehicle is accident-free "into the blue".
b) The supplementary performance by delivery of another, defect-free item is not excluded from the outset due to impossibility, even in the case of piece purchases. In the opinion of the parties, a replacement delivery is possible if the purchased item can be replaced by a similar and equivalent item in the event that it is defective. When buying a used car, it usually makes sense to say no if the decision to buy was preceded by a personal inspection of the vehicle.


Central problems:

The BGH commented on one of the first problems that became virulent under the new sales law: Can supplementary performance within the meaning of Section 439 of the German Civil Code (BGB) be carried out through the delivery of a (different) defect-free item, or is this excluded because the obligation relates to the item delivered from the outset has limited the (defective) item with the result that subsequent performance can only be considered in the form of remedying the defect.
The sub-judicial rulings were based on the point of view that a claim for supplementary performance aimed at the delivery of a (different) defect-free item can also be taken into account in the case of piece purchases if this is a defensible item, see LG Ellwangen NJW 2003, 517 and OLG Braunschweig v. February 4, 2003 - 8 W 83/02). However, the literature does not focus on the objective and therefore unsuitable criterion of justifiability within the meaning of Section 91 BGB, but rather on the "substitutability" of the thing in the specific case, for which the "justifiability" can at best have an indicative function. The decisive factor is whether the object of purchase should be exchangeable for another object according to the will of the party to be determined through interpretation, if necessary according to the hypothetical will of the party (see PdW SchuldR II case 30). The BGH agrees here: In fact, all problematic cases such as the sale of used items, remaining stock sales and the like can be satisfactorily solved with this. Admittedly, if one focuses primarily on the replaceability of the object of purchase, which is to be determined according to the will of the party, then there is a (limited) generic purchase, so that the question, regarded as a dogmatic obstacle, that the seller suddenly arises in the way of subsequent performance aliud debt, i.e. an object is not suitable for performance, but is capable of supplementary performance, ultimately not at all. If, however, one believes that the problem cannot be grasped with the terms purchase of a generic type and purchase of a piece, the Consumer Goods Directive requires such an approach in any case. However, it does not dictate the affirmation of a subsequent performance claim by delivery of another item for every piece purchase, regardless of the will of the party, or even to abandon the category of generic debt altogether. In this respect, the BGH's argument that the legislature has given up the distinction between unit and generic purchases is at least dangerous: because of the introduction of a claim for supplementary performance, it does not need any special provisions for generic purchases; at the level of subsumption, the distinction is still important. Finally, the category of generic debt as such continues to exist (see § 243 BGB). In short: supplementary performance by delivery of another item is also possible in the case of individual debt if this corresponds to "the will of the contracting parties to be determined by interpretation", ie if, according to their common ideas, "the purchased item is replaced by a similar and equivalent item if it is defective can ". This is a matter of course resulting from private autonomy, for which one does not have to give up the categories of generic guilt / piece guilt. In the specific case, the BGH certainly correctly denies this interchangeability. For this reason, there was an irreparable defect which, according to §§ 437 No. 2, 326 V, 323 BGB, entitles the customer to withdraw immediately (without setting a supplementary performance period). See also BGH v. 3/18/2015 - VIII ZR 176/14.
The Senate still had to deal with the question of the statute of limitations. As is well known, the resignation does not "statute barred" as a design right, which is why the law, in an extremely complicated technique, in order to merely objectionable observation of the time limit for the withdrawal, links in § 218 BGB to the statute of limitations of a (possibly fictitious) claim for supplementary performance (see PdW SchuldR II case 50). However, this deadline is met by declaring the withdrawal within the limitation period of the (here fictitious) claim for supplementary performance. If the withdrawal is declared, the resulting reimbursement claims (§§ 346 ff BGB) have arisen and are subject to claims "out Withdrawal "of the regular statute of limitations and no longer § 218 BGB, see already OLG Koblenz ZGS 2006, 117 and now also BGH of November 15, 2006 - VIII ZR 3/06.
To distinguish between negligence and intent in "statements in the blue" see also BGH v. June 19, 2013 - VIII ZR 183/12. See further BGH v. April 15, 2015 - VIII ZR 80/14.

© sl 2006


Facts:

The plaintiff bought from the defendant, an automobile manufacturer, a used car M offered on the Internet by its branch in L. at a price of € 29,000. The purchase agreement was concluded on March 14, 2002 in the defendant's L. branch after the plaintiff had inspected the vehicle there. The order form on which the contract is based contained the entry: "Number, type and scope of accidental damage according to previous owner: NONE". The branch in L. had acquired the vehicle from a subsidiary of the defendant, D. GmbH, which had previously had it valued by a DEKRA appraisal. The vehicle was handed over to the plaintiff on March 21, 2002. After the plaintiff had found out during a visit to the workshop that the vehicle had sustained considerable and improperly repaired accident damage, he complained about this to the defendant. An expert report commissioned by the defendant on January 29, 2003 confirmed the suspicion. It turned out that the repairs in question had been carried out in September 1998 at the defendant's branch in M. In a letter dated April 24, 2003, the plaintiff declared that the purchase contract was being challenged on the basis of fraudulent misrepresentation.

The plaintiff has applied for the defendant to be ordered to pay € 29,000 plus interest to D. GmbH, which financed the purchase price. The regional court dismissed the lawsuit. In response to the plaintiff's appeal, the higher regional court granted the complaint. With its revision approved by the appellate court, the defendant seeks the restoration of the first instance judgment.

Reasons for decision:

The appeal is successful and leads to the matter being referred back to the appellate court.

I. The appellate court, the decision of which is published in NJW-RR 2005, 1579, essentially stated as justification:

The claimant is entitled to the asserted payment claim according to § 812 Paragraph 1 Clause 1, 1st alternative BGB. The plaintiff paid the purchase price without any legal reason because he had effectively challenged his purchase contract declaration in accordance with Section 123 (1) BGB on account of fraudulent misrepresentation. He had proven that the seller B., who worked for the defendant, had insured that the vehicle was accident-free without restriction. The information in the order form that the vehicle had no accident damage "according to the previous owner" was not to be understood as a (partial) revocation of the further verbal information provided by the seller. Even if the seller B. himself may not have fraudulently claimed freedom from accidents - "into the blue" - there is fraudulent misrepresentation of the plaintiff on the part of the defendant, because the defendant is aware of the unreported knowledge of others according to Section 166 (1) of the German Civil Code (BGB) People from their area must be included. The prerequisites for knowledge attribution are met. The storage of the extensive accident repairs carried out in a branch of the defendant in M. would have been necessary because the repair had been commissioned by a lessee of the subsidiary of the defendant, a sale of the used vehicles that had occurred at the subsidiaries of the defendant via one of the branches of Defendant is likely and the branches usually waived their own investigations in the case of vehicles originating from the Defendant's area. If the information about the accident damage obtained at the defendant's branch in M. - as here - has not been passed on to the branch in L. dealing with the sale, there is an organizational error in the company's internal communication, which allows the attribution of the in the branch M. justify acquired knowledge as if it had arrived at the seller in the branch in L.

If, on the other hand, the contestation of the purchase contract should be regarded as ineffective due to the lack of a reason for contestation, the plaintiff is in any case entitled to payment according to Sections 346 (1), 434, 437 no. In the event of its ineffectiveness, the plaintiff's declaration of rescission should be reinterpreted as a declaration of withdrawal in accordance with Section 140 of the German Civil Code. The lack of freedom from accidents is a material defect. According to Section 326 (5) BGB, the plaintiff did not have to set a deadline for supplementary performance because supplementary performance was impossible. The character of the vehicle as an accident vehicle cannot be changed by reworking. According to the new sales law, the delivery of another used car that is functionally and contractually equivalent is not ruled out simply because it is a unit purchase. However, according to the will of the parties involved, which can be determined through interpretation, the vehicle must be interchangeable. This is not to be assumed if the purchase choice, as here, was made not only on the basis of objective requirements, but also on the basis of the buyer's personal impression. According to § 218 BGB, the plaintiff declared his resignation in good time. It is true that the limitation period for the warranty claim according to Item VII 1 a of the General Terms and Conditions of the Defendant is shortened to one year; however, the negotiations that had already started before the statute of limitations came to an end would have inhibited the expiry of the statute of limitations. In favor of the defendant it could not be taken into account that the defendant had counterclaims for restitution of the vehicle and compensation for use; because the defendant did not raise the objection to which it was entitled under Section 348 of the German Civil Code (BGB).

II. The statements of the appellate court do not withstand the legal review in all points. The appellate court rightly affirmed a claim of the plaintiff against the defendant from § 812 paragraph 1 sentence 1, 1st alternative BGB for repayment of the purchase price due to fraudulent misrepresentation upon conclusion of the purchase contract. Irrespective of this, the precautionary auxiliary justification with which the appellate court granted the plaintiff a repayment claim according to §§ 346 Paragraph 1, 437 No. 2, 326 Paragraph 5 BGB, is not objectionable. With regard to both bases of claims, however - contrary to the opinion of the appellate court - a step-by-step conviction would have to be pronounced because of the defendant's claim to the return of the vehicle and the surrender of the uses.

1. The plaintiff paid the purchase price without any legal reason (Section 812, Paragraph 1, Clause 1, 1st alternative, BGB). The purchase contract of March 14, 2002 is ineffective according to § 142 Paragraph 1 BGB. The contestation of the contract declared by the plaintiff in a letter dated April 24, 2003 takes effect because the seller B. has fraudulently deceived the plaintiff about the fact that the vehicle was not accident-free (Section 123 (1) BGB); this deception is attributable to the defendant in accordance with Section 166 (1) of the German Civil Code (BGB).

a) The appellate court found that the information provided by seller B. about the accident-free vehicle was objectively untruthful. The procedural objections raised by the appeal are unfounded.

aa) Unsuccessfully, the revision complains that the statements of witnesses P. and O., who were heard in the first instance, are subject to a prohibition on the use of evidence because the witnesses overheard the telephone conversation between the plaintiff and the seller B. without his knowledge (see BGH, judgment of February 18, 2003 - XI ZR 165/02, NJW 2003, 1727, under II with further references; BVerfGE 106, 28, 47 ff.). The defendant can no longer invoke the procedural error alleged by the appeal because it did not complain about the defect at the next oral hearing, although it should have been aware of it (Section 295 (1) ZPO). Because the defendant, aware of the fact that witness B. had excluded in his interrogation that he knew that third parties were overhearing the phone call, negotiated without a hitch in the oral hearing following the taking of evidence.

bb) The appeal in law wrongly complains that the appellate court wrongly misunderstood (§ 286 ZPO) that witness B. only stated that the car was accident-free according to the information provided by the previous owner. In its assessment of the evidence, which it based essentially on the statements of witnesses P. and O., the appellate court assumed that witness B. had admitted that it could be that the plaintiff had asked him about freedom from accidents, and he did would then have answered the question in the affirmative because the vehicle was accident-free for him according to the files. This does not reveal any legal error. According to the minutes of the meeting referred to by the revision, witness B. stated that the car was accident-free for him; if the plaintiff had asked him about this, he would definitely have passed it on.

cc) The appellate court accepted without legal errors that the plaintiff did not have to interpret the information in the order form "Number, type and scope of accident damage according to previous owner: NONE" as a (partial) revocation of the information previously received about freedom from accidents, because standard formulas of this type did not state that further explanations in the run-up to the contract were incorrect. The interpretation of this declaration by the appellate court, which can only be checked by the appellate court to determine whether the judge has dealt with the trial material and the evidence results comprehensively and without contradictions, i.e. the assessment is completely and legally possible and does not violate the laws of thought or empirical principles (Senate judgment from July 22, 1998 - VIII ZR 220/97, NJW 1998, 3197 = WM 1998, 2436, under II 2 a), is not objectionable for legal reasons. Insofar as the revision on the other hand thinks that the information provided by witness B. was restricted by the entry in the order form, it merely sets its own understanding against the - legally error-free - factual interpretation.

b) Contrary to the opinion of the appellate court, the seller B. is himself to be accused of malicious acts. Whoever makes incorrect statements knowing that they are incorrect is acting fraudulently; conditional intent is sufficient for this (see Senate judgment of March 25, 1998 - VIII ZR 185/96, NJW 1998, 2360 under II 1 b with further references). According to the constant jurisprudence of the Senate, a seller acts fraudulently if he provides incorrect information on questions, the answer of which is clearly significant for his counterparty's decision to buy, without any factual basis (BGHZ 63, 382, ​​388 mwNachw.) . According to the actual findings of the court of appeal, the seller B. has assured the freedom from accidents "without sufficient knowledge base" (Senate judgment of March 25, 1998, loc. Cit.), Thus "into the blue", without the question discussed by the court of appeal as to whether the defendant or the seller B. the knowledge that the employees of the M. branch of the defendant about the accident damage to the vehicle had acquired more than three years ago.

The appellate court found that the seller B.did not initiate an examination of the vehicle because the vehicle came "from the bank", i.e. from the defendant's own area or from its subsidiary. This circumstance did not form a sufficient basis for knowledge for the - unqualified - declaration made to the plaintiff that the vehicle was accident-free. According to the unopposed findings of the appellate court, seller B. only had a list of damages at his disposal, which was intended to show him as the seller how much he still had to invest before the sale. Such a list said nothing about the accident-free vehicle. Also, as the appellate court has further determined, the seller B. did not make his declaration in reliance on the DEKRA report; this was not completely available to him and, moreover, did not contain any information about the accident-free nature of the vehicle.

It is true that the seller of a used car, as the appellate court has rightly stated, is not obliged to examine the vehicle offered for sale for accident damage according to the highest court rulings if there are no particular indications of accident damage (cf. Senate judgment of January 21, 1981 - VIII ZR 10/80, NJW 1981, 928 under II 2 b aa). However, the seller, who refrains from his own examination of the vehicle and nevertheless guarantees that it is accident-free, must make clear the limitation of his level of knowledge if he - as was the case here according to the findings of the appellate court - claims that it is accident-free in a way that Can give the buyer the impression that this is done on the basis of reliable knowledge. Seller B. missed such a - restrictive - note. He assured the plaintiff that the vehicle was accident-free, without making it clear that he had no knowledge of his own about the accident-free condition and that the files available to him did not say anything about it.

2. The statements with which the appellate court affirmed a claim of the plaintiff for repayment of the purchase price under §§ 346 Paragraph 1, 437 No. 2, 326 Paragraph 5 BGB are not objectionable. The appellate court has alternatively reinterpreted the plaintiff's declaration of contestation - in the event of its ineffectiveness - as a declaration of withdrawal from the purchase contract (Section 140 BGB). For legal reasons, this is not objectionable and is not attacked by the revision either. The resignation of the plaintiff is, if the challenge were not upheld, effective against the view of the appeal. With the withdrawal, the purchase contract was converted into a reversal obligation according to §§ 346 ff. BGB. The plaintiff was entitled to withdraw and declared this in good time.

a) The appellate court correctly assumed that the plaintiff had a right of withdrawal. According to § 437 No. 2, 1st alternative BGB, the buyer of a defective item can withdraw from the contract in accordance with § 326 Paragraph 5 BGB. The vehicle bought by the plaintiff was defective because, contrary to the agreed quality, it was not accident-free (Section 434 (1) BGB). The resignation according to §§ 437 No. 2, 326 Abs. 5 BGB presupposes that the seller does not have to perform according to § 275 Abs. 1 to 3 BGB. This requirement is also met here. In the event of a material defect, the buyer has a priority claim to subsequent performance by removing the defect or delivering a defect-free item (replacement delivery) in accordance with §§ 437 No. 1, 439 Paragraph 1 BGB. Such a claim for supplementary performance by the plaintiff is excluded in accordance with Section 275 (1) of the German Civil Code (BGB) because the defendant, as the appellate court has correctly determined, both types of supplementary performance are impossible. Subsequent performance by eliminating the defect (§ 439 Paragraph 1, 1st alternative BGB) is not possible because the character of the vehicle as an accident vehicle cannot be corrected by repairs (cf. also BT-Drucks. 14/6040, p . 209; Reinking / Eggert, Der Autokauf, 9th ed., § 1425). The other type of supplementary performance, the replacement delivery (§ 439 Paragraph 1, 2nd alternative BGB), is also impossible according to the legal error-free findings of the appellate court in the case of the used vehicle purchase in question.

aa) However, the appellate court rightly assumed that the delivery of another - functionally and contractually equivalent - used vehicle was not ruled out simply because it was a unit purchase. On the other hand, according to one opinion represented in the literature, a replacement delivery should be impossible in any case when buying units (Ackermann, JZ 2002, 378; Faust, ZGS 2004, 252 mwNachw .; P. Huber, NJW 2002, 1004, 1006; U. Huber, Festschrift für Schlechtriem, 2003, p. 521, 523 fn. 9; Tiedtke / Schmitt, JuS 2005, 583, 586; Lorenz, JZ 2001, 742, 744, but now differently in MünchKommBGB, 4th edition, before § 474 paragraph 17). The reason given is that the seller's obligation to perform in the case of piece purchases relates only to the item sold and thus any other item is from the outset unsuitable to bring about the contractually owed state (see U. Huber, op. Cit .; mw.; Ackermann, op. Cit.) , 379).

This view, which is rejected in the case law and predominantly also in the literature (OLG Braunschweig, NJW 2003, 1053, 1054; LG Ellwangen, NJW 2003, 517; Bitter / Meidt, ZIP 2001, 2114, 2119 f .; Canaris, JZ 2003 , 831, 1156; MünchKommBGB / Westermann, op. 439, No. 28 et seq .; Ball, NZV 2004, 217, 220), the appellate court rightly did not follow suit. A restrictive interpretation of Section 439, Paragraph 1 of the German Civil Code to the effect that the buyer of a piece goods cannot in any case request a replacement delivery is not supported by the wording of Section 439, Paragraph 1 of the German Civil Code and is incompatible with the will of the legislature, which emerges from the legal materials ; it would lead to the priority of the claim to supplementary performance, which is based on §§ 437 ff. BGB (see also draft explanations for the Law of Obligations Modernization Act, BT-Drucks. 14/6040, pp. 94 f., 220 f., 230 ; BGHZ 162, 219, 226 ff.), Would be omitted from the outset when buying pieces. That would contradict the will of the legislature.

(1) Pursuant to Section 439 (1) BGB, which was inserted into the Civil Code by the Law of Obligations Modernization Act of November 26, 2001 (BGBl. I p. 3138), the buyer can choose to remedy the defect or Request delivery of a defect-free item. The wording of the provision, according to which it is not important whether a unit purchase or a generic purchase is present, with regard to repair or replacement delivery, does not contain any indication that the buyer is entitled to a replacement delivery only in the case of a generic purchase, but not in the case of a unit purchase be. The differentiation between piece and class purchases under previous law, according to which the buyer could only request delivery of a defect-free item in the latter case (Section 480 (1) sentence 1 BGB old version), has been abandoned in the new law (see BT-Drucks . 14/6040, p. 230).

(2) The legislature has assumed that the creation of the buyer's claim for subsequent performance - which is not regulated in Sections 459 et seq. BGB old version, regardless of whether a unit purchase or a generic purchase has been made - corresponds to both the interests of the buyer and those of the seller , and has deliberately provided the possibility of supplementary performance through the delivery of another item that is free of defects, also in the event of a piece purchase. In the justification for the design, it is stated that the buyer is not primarily interested in canceling the purchase or reducing the purchase price; his main concern is to get something that is free from defects. This interest can "in most cases - even when buying pieces - be satisfied by reworking or delivering another similar item" (BT-Drucks. 14/6040, pp. 89, 220, 230). From this it can be seen that the legislator has not considered supplementary performance by delivery of another, defect-free item in the case of piece purchases as fundamentally excluded.

bb) Even if, as explained, a replacement delivery is not ruled out from the outset when purchasing units, it is not always possible, as has already been emphasized in the design justification (BT-Drucks. 14/6040, p. 209) ; this applies in particular to the purchase of used items. In the legal materials it is pointed out that when buying a certain used item, a subsequent delivery "will mostly be eliminated from the start" (BT-Drucks. 14/6040, p. 232). The assumption of the appellate court, which is consistent with this consideration, that in the present case of a used vehicle purchase, the replacement delivery of another vehicle was impossible within the meaning of Section 275 (1) BGB, is not objectionable for legal reasons.

Whether a replacement delivery is possible is to be judged on the basis of the will of the contracting parties, which can be determined through interpretation, when the contract is concluded (§§ 133, 157 BGB; see Palandt / Putzo, loc. Cit., § 439 marginal number 15).In the opinion of the parties, a replacement delivery is possible if the purchased item can be replaced by a similar and equivalent item in the event that it is defective. When interpreting the purchase contract, the appellate court came to the conclusion that it could not be assumed that the purchased item was interchangeable according to the will of the parties involved, and based this on the fact that the plaintiff made his purchase decision not only on the basis of objective requirements, but also based on the personal impression gained during the inspection of the vehicle. This judicial assessment, which can only be checked to a limited extent by the appeal court, is not objectionable for legal reasons. Insofar as the appeal on appeal means that it is not impossible for the defendant to deliver an equivalent used vehicle because the plaintiff did not value a specific individual vehicle, but only wanted a specific type with a specific equipment, it cannot be successful . The appeal court only opposes the judicial interpretation of the purchase decision by the appellate court with its own view of the interchangeability of the vehicle, without showing misinterpretation.

The interpretation of the appellate court is based on the consideration that when buying a used car, even if the buyer - as demonstrated by the appeal with reference to the corresponding submissions in the application - is usually concerned with a certain type and equipment of the vehicle Only the overall impression of the technical properties, functionality and external appearance of the individual vehicle obtained during a personal inspection is decisive for the buyer's decision to buy the specific vehicle, which should then not be interchangeable with another in all of its properties . This view of the appellate court is not only obvious when buying a used car, but is generally appropriate when buying used items. In view of the many differences in the degree of wear and tear of used items - even of the same type - caution is required when assuming that when buying a used item, the delivery of another item also corresponds to the will of the party. If a replacement delivery is considered possible, due to the priority of subsequent performance, the parties must first discuss the delivery of another used item before withdrawing from the contract or another right under Section 437 No. 2 and 3 BGB can be claimed. In view of the naturally different state of preservation of used items and the associated difficulty in procuring a replacement item of equal value in every respect, more frequent disputes about the equivalence of the replacement item offered or to be procured would be foreseeable, even if used items would regularly be entitled to a replacement delivery. This would run counter to the interests of both parties to the purchase contract. The legislature also wanted to avoid this by expressing that when buying a certain used item, a subsequent delivery would "usually be eliminated from the start" (BT-Drucks. 14/6040, p. 232; also on the purchase of a used car: Reinking / Eggert, loc. cit., No. 1421 et seq .; see also Ball, loc. cit.). Circumstances that could suggest the assumption of an exceptional case in the case of a used vehicle purchase, as is the case here, in which the delivery of an equivalent replacement vehicle appears to be possible (see Ball, op. In this respect, the revision does not show any passed factual presentation.

b) Contrary to the opinion of the appeal, the resignation of the plaintiff is not in accordance with §§ 438 para. 4 sentence 1, 218 para. 1 sentence 1 BGB in conjunction with item VII 1 a of the general terms and conditions of the defendant due to the expiry of the (hypothetical) The claimant's claim for supplementary performance is ineffective.

aa) The revision means that the plaintiff's resignation is ineffective because the limitation period for the plaintiff's warranty claims has already expired on August 13, 2003, the date on which the action for repayment of the purchase price was brought. The revision does not get through. According to § 438 Paragraph 4 Clause 1 in conjunction with § 218 Paragraph 1 Clause 1 BGB, the withdrawal due to non-contractual performance is ineffective if the claim to the performance or the claim for supplementary performance is statute-barred and the debtor invokes this. In this way, the legislature wanted to ensure that the obligee can no longer exercise his right of withdrawal if the performance or any subsequent performance claim would no longer be enforceable due to the statute of limitations; the statute of limitations should also have an impact on the right of withdrawal, although design rights as such are not subject to the statute of limitations (BT-Drucks. 14/6040, p. 124).

Accordingly, according to Section 218, Paragraph 1, Clause 1 of the German Civil Code (BGB), the timeliness of the withdrawal depends on the withdrawal being declared before the claim to performance or any subsequent performance claim is statute-barred. The decisive factor is therefore the point in time at which the right to design is exercised, but not the point in time at which claims are asserted in court from the obligation to return the guarantee resulting from the withdrawal (Sections 346 et seq. BGB).

bb) The appellate court rightly assumed that the plaintiff had declared the resignation to be seen in the contestation (§ 140 BGB) in the letter of April 24, 2003, before any claim of the plaintiff for supplementary performance (§§ 437 No. 1, 439 para. 1 BGB) would have been statute-barred. The claimant's claims for defects were subject to a shortened limitation period of one year according to VII 1 a of the general terms and conditions of the defendant, which became part of the contract after the unopposed findings of the appellate court. The one-year limitation period started when the vehicle was delivered on March 21, 2002 (Section 438 (2) BGB). The challenge of April 24, 2003, which was to be reinterpreted as a declaration of withdrawal, took place in good time because the start of the statute of limitations, as the appellate court determined without any legal errors, was suspended due to the negotiations between the parties on the material defect in accordance with Section 203 of the German Civil Code (BGB). The appellate court did not expressly state the times at which the negotiations began and ended. However, they result from the factual findings made by the court of appeal. Thereafter, the statute of limitations was suspended no later than January 29, 2003, when the defendant commissioned an expert to assess the vehicle in order to check the plaintiff's complaint. The suspension of the statute of limitations ended - from which the appeal is also based - at the earliest with the declaration of contestation or resignation in the plaintiff's letter of April 24, 2003. According to this, any claim for subsequent performance by the plaintiff would not have been time barred at this point in time.

3. The revision rightly objects to the unqualified conviction of the defendant to repay the purchase price.The appellate court failed to restrict the conviction to such an extent that the defendant only has to make payment step by step against the fulfillment of its counterclaims for the return of the vehicle and payment of compensation for use. Such a step-by-step conviction is necessary with regard to both bases of the claims on which the appellate court based the conviction of the defendant.

The appellate court itself assumed - correctly - that the plaintiff, to whose bank the purchase price is to be repaid, has to return the vehicle and surrender the benefits. These counterclaims of the defendant arise with regard to the contestation of the contract (above under 1) from §§ 812 paragraph 1, 818 paragraph 2 BGB and with regard to a possible withdrawal from the contract (above under 2) from §§ 346 f. BGB. The appeals court also did not fail to recognize that the mutual obligations of the parties must be fulfilled step by step if the defendant has asserted the right to refuse performance to which it is entitled (Sections 273 f. BGB or Section 348 in conjunction with Sections 320 ff. BGB). However, the appellate court's assumption that the defendant did not exercise its right to refuse performance cannot be accepted. Admittedly, this was not expressly done. But that is not necessary either.

A train-by-train conviction does not require a formal request from the defendant; Rather, it is sufficient if the defendant files an unqualified motion to dismiss, provided that the will to withhold one's own performance in view of the non-payment of the consideration is clearly recognizable (Senate judgment of October 7, 1998 - VIII ZR 10/97, NJW 1999, 53 under II 2).

Such is the case here. The revision rightly objects that the appellate court did not exhaustively assess the material in the case in violation of Section 286 of the German Code of Civil Procedure (ZPO). In the defense, the defendant asserted that the plaintiff could not, on the one hand, keep driving and wear the vehicle and, on the other hand, demand its return. In connection with the motion to dismiss, it was sufficiently expressed that the defendant also defended itself against the suit from the point of view that, in its opinion, a possible success of the suit would have to result in the withdrawal of the meanwhile worn vehicle. This was sufficient to assert the right to refuse performance from § 273 BGB or § 320 BGB, taking into account the fact that the plaintiff himself assumed that the success of his lawsuit was linked to the return of the vehicle; His willingness to return the vehicle if the defendant pays back the purchase price minus compensation for use was expressed by agreeing to a corresponding settlement proposal by the regional court. According to this, the defendant had no cause for concern that she would be sentenced to repay the purchase price without restriction solely because she had not made clear her request for a mutual reversal of the purchase contract, as the appellate court said. If the appellate court nevertheless wanted to assume that the defendant did not request a mutual reversal of the services received in the event of a success of the lawsuit, then, as the appeal law rightly complains, at least the defendant would have a reference to his of his of must give the ideas of both parties a different opinion. As the appeal points out, the defendant would of course have made it clear that it wanted to raise its right to refuse performance.

III. The appeal judgment is therefore to be set aside on the appeal of the defendant (Section 562 (1) ZPO). Since the court of appeal has not made any determinations on the amount of the defendant's right to compensation for use, the matter is not ready for a final decision, but has to be referred back to the court of appeal (Section 563 (1) sentence 1 ZPO).