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Vehicle purchase contract: Vehicle misappropriated during test drive and acquisition in good faith under German law

Vehicle purchase contract: Vehicle misappropriated during test drive and acquisition in good faith under German law

Whoever leaves a car to a potential buyer for an unaccompanied test drive risks that the potential customer effectively sells and transfers the vehicle to a third party. The facts in dispute had to be decided by the OLG Celle in its judgement of 12.10.2022 (7 U 974/21).

A car dealer gave an Audi Q5 to a potential customer for a one-hour test drive. Two SIM cards were installed in the vehicle, which in principle made it possible for the police to locate the vehicle with the support of the manufacturer. Using false personal data, the potential customer sold the vehicle to a bona fide third party for a cash payment of EUR 31,000 via Ebay. After the vehicle was seized by the police and subsequently released in favour of the car dealer, the car dealer sold the vehicle. The bona fide purchaser now demanded that the car dealership hand over the proceeds from the sale of the vehicle, as he had bought it in good faith. The Higher Regional Court of Celle ruled in his favour. Accordingly, he had acquired ownership of the vehicle from the fraudster in good faith. The essential considerations of the Court were: 

The object of sale had not been gone astray: In principle, § 935 I BGB stipulates that a bona fide acquisition from a non-entitled person is excluded if the object of sale was stolen from the original owner or has been lost. However, this is not the case if possession is voluntarily relinquished, even for the purpose of a simple unaccompanied test drive. 

Locating possibility via SIM cards is irrelevant: The fact that the vehicle could have been located via an installed SIM card does not affect the assessment. This tracking option cannot be equated with an accompanied test drive. The locating was only possible with considerable delay via the police and the manufacturer and therefore did not exclude a bona fide acquisition of the car.

Falsification of the "motor vehicle registration certificate": A bona fide acquisition is also excluded if the buyer grossly negligently failed to realise that the vehicle did not belong to the seller. For this, the buyer must at least have the motor vehicle registration certificate presented. In the case in question, however, the registration certificate was forged so professionally that the buyer could not recognise the forgery.

Selling used cars on the street is not unusual: After all, selling used cars on the street is not unusual. The cash payment of a car is also not suspicious, as the purchase price was reasonably high. The seller had plausibly explained the missing handover of the duplicate key, so that the buyer should not have been suspicious.

This case would have been decided differently in Italy, since under Italian law a bona fide acquisition of registered vehicles is excluded under Art. 1156 of the Italian Civil Code.