Ask a lawyer on the topic of Contract law

Used car warranty

January 19, 2010 | 30,00 EUR | answered by Bernhard Müller

Good day,

I purchased a BMW X5 model year 2002 with approximately 144,000 km from the company Schiel und Sasse on 26.02.2009. At my insistence, I took out a used car warranty with Real-Garant. On 12.01.2010, the automatic transmission broke down. I reported the damage to the seller the next morning and informed the insurance company. According to the warranty terms, I have to bear 60% of the material costs myself.

However, the insurance company insists on a specific repair company (which is significantly more expensive than the average in Berlin) and has been delaying me for a week because they are currently so busy. On 14.01.2010, I was told that a repair before 25.01. is not possible and a specific appointment cannot be scheduled yet.

The insurance company offered me the only option left, which is to have the vehicle repaired directly at BMW, doubling my costs, which I am not willing to accept. I suggested to the insurance company that I would have the repair done at another transmission repair workshop, significantly reducing costs for both me and the insurance company. However, the insurance company does not agree to this.

After speaking with the insurance company again and insisting on an earlier appointment at the contracted workshop, I was told that they would speak with the workshop. I then called the workshop again and was told that I would get a timely appointment and they would call me back soon (this would be the third callback I am waiting for).

I feel like I am just being strung along here. How long do I have to go without my car? Is it worth having the repair done elsewhere and then holding the insurance company accountable?

Thank you in advance,
L. Grunewald

Bernhard Müller

Dear inquirer,

The Federal Court of Justice (BGH) ruled on 14.10.2009 VIII ZR 354/08 that a clause in the warranty agreement, which makes the liability dependent on the fact that a formulary inspection is carried out at the seller's workshop (and not at another workshop), is invalid due to unfair disadvantage. It is often unreasonable for the warranty holder to have the purchased item serviced at the seller's workshop (BGH judgment of 14.10.2009 VIII ZR 354/08).

Also invalid is a clause stating that the guarantor is only obliged to provide services under the warranty after submission of the repair invoice. According to such a clause, the warranty holder would have to finance the repair in advance and therefore, if unable to do so, would not receive any compensation from the guarantor (BGH a.a.O.).

In my opinion, the situation should not be any different if the warranty case has already occurred and the workshop designated by the insurer is not able to carry out a timely repair. At least in this case, you should have the option to choose a workshop that can complete the repair sooner, as long as it is guaranteed that the workshop you choose will perform the repair in the same quality as the insurer-designated workshop and not at a higher cost.

To be completely sure, you should have the workshop confirm in writing that they cannot carry out the repair before 25.01, or bring witnesses to the conversation.

Lastly, I would like to point out that the response is based solely on the information provided by you. Adding or omitting significant details may change the legal assessment.

Best regards,

Bernhard Müller
Attorney at Law