Contract: assignment of all claims against Daimler to the bank
The plaintiff had bought a new Mercedes GLC in 2019 for more than 55,000 euros through financing from the in-house Mercedes-Benz bank. The contract states that the borrower assigns, among other things, current and future claims against Daimler to the bank as security – “regardless of the legal reason”. According to the Stuttgart Higher Regional Court, which recently dealt with the case, this clause is “regularly” found in the bank’s loan conditions. A spokeswoman for Mercedes-Benz declined to comment.
OLG Stuttgart denied the buyer’s right to act
The man later demanded compensation from the Mercedes-Benz Group, as Daimler is now called. He claims his car is equipped with various illegal defeat devices and emits more toxic exhaust fumes than permitted while driving. So far, the main issue in court has been whether the man can still sue Mercedes-Benz at all. In the opinion of the Higher Regional Court judges, he effectively assigned such claims to the bank. The BGH judges now seem to see things differently. After preliminary deliberations by her Senate, Menges said the clause may be invalid because it unreasonably disadvantages consumers. The verdict is to be announced on April 24th. If the Federal Court of Justice overturns the judgment from Stuttgart, the next step would be for the Higher Regional Court to examine whether the conditions for possible liability are met.
Lawsuit, among other things, because of the use of a thermal window
Among other things, the man had complained about a so-called thermal window in his diesel. The technology, which was also used as standard by other manufacturers, comes into play when it comes to cleaning exhaust gases. So that the vehicles emit fewer toxic nitrogen oxides, some of the exhaust gases are burned directly in the engine. If the temperatures are cooler outside, this mechanism is automatically throttled. Manufacturers say this is necessary to protect the engine. So far, diesel buyers with thermal window complaints have had a rather bad hand. The BGH has ruled several times that Daimler cannot immediately be accused of fraudulent intent just because it uses the technology. There has not yet been a decision by the supreme court on other components of the exhaust technology at Mercedes-Benz. A model lawsuit by the consumer centers is also running for this purpose.
ECJ ruling on liability for thermal windows could change the legal situation
However, a judgment by the European Court of Justice on March 21 is eagerly awaited, which will also deal with a thermal window in a Mercedes diesel. According to the opinion of the Advocate General, it could happen that the Luxembourg judges, unlike the BGH, assume liability on the part of the manufacturer even in the event of simple negligence. That would significantly lower the hurdles for claims for damages. In Germany, therefore, mass diesel proceedings are currently on hold in all instances.
Disputed assignment clause contained only in contracts of Mercedes-Benz Bank
The BGH judgment on the car loan contracts should only affect Mercedes-Benz. The Berlin law firm Goldenstein Rechtsanwälte, which is very active in the diesel scandal, announced that it had examined thousands of financing agreements from car banks in this context. “As far as we know, only Mercedes-Benz Bank had the audacity to ward off claims for damages against the respective parent company through clauses in general terms and conditions.”
Editor beck-aktuell, March 13, 2023 (dpa).
Related Links
From the beck-online database
ECJ-General Advocate, diesel engine, pollutant emissions, thermal window, defeat device, BeckRS 2022, 12232
Schröder, thermal window in front of the
ECJ,NZV 2022, 408
Higher Regional Court of Stuttgartdamages, assignment, general terms and conditions, borrower, right to act, financing bank, silent assignment, BeckRS 2022, 2436
BGHNo immoral damage to the buyer of a Daimler diesel vehicle equipped with a thermal window and coolant target temperature control (here: Mercedes Benz GLK 220 CDI 4MATIC), BeckRS 2021, 33038
BGHUse of thermal windows in diesel cars, NJW 2021, 921 (with note Schaub)
BGHuse of an impermissible defeat device in the form of a thermal window, NJW 2021, 3721
From the news archive
Liability for damages for vehicles with “thermo windows”, report by the beck-aktuell editorial team from June 2nd, 2022,
becklink 2023432