Inferiority

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The reduction in value is in torts of lower value , which the market a damaged thing ( mercantile reduced value ) after its repair on the due unrecoverable defects remaining technical reduction in value addition already because of the risk attaches hidden defects over a comparable undamaged thing. It is mainly used in connection with the regulation of accident damage to motor vehicles . In everyday language, there is often talk of impairment , although this should be understood as a different matter .

General

The depreciation is a fictitious value. It should take into account that a motor vehicle after an accident-related repair as a so-called accident vehicle has a lower value on the used car market than an accident-free vehicle. According to the case law of the Federal Court of Justice , a distinction must be made between technical and mercantile depreciation and the extent of damage and vehicle age must be taken into account.

If a vehicle loses the quality of its freedom from damage due to a repair, its market value decreases compared to a vehicle that is free from damage. The average buyer no longer expects older vehicles that have been in service for a longer period of time to be free from damage, and the legally assessed “distrust and discomfort” of potential buyers is then no longer given. Buyers sensitive to depreciation avoid older vehicles after several owners. The estimate of the depreciation is usually computer-assisted.

Legal issues

The legal concept of inferiority exists in the compensation law of the BGB . As a rule, Section 249 (1) of the German Civil Code (BGB) assumes that the damaging party has to completely eliminate the damage to an item by properly repairing it (in rem restitution ). Nevertheless, it can happen that the market value of a properly repaired item is lower than that of an undamaged item. This is particularly evident in motor vehicles where the market value of an "accident vehicle " is lower than that of a comparable accident-free vehicle . If a partial impossibility or unreasonableness does not lead to a complete elimination of the damage, the injured party can demand the replacement of the mercantile and / or technical depreciation.

  • A mercantile reduction in value is to be assumed if a potential buyer of a repaired item can demand a discount from the purchase price because of the suspicion of hidden defects or because of concerns about the long-term consequences of the damage or the repair work. It is based on the fact that a damaged item has defects of some weight, which despite a faultless repair is rated lower by the market than a defect-free one. This mercantile depreciation becomes after § 251 Abs. 1 Alt. 2 BGB offset by a surcharge on the repair costs .
  • A technical inferior value is present if a properly carried out repair does not lead to a complete elimination of the damage or if the injured party has to be satisfied with an imperfect repair due to his duty to reduce the damage (§ 251 para. 1 alt. 2 BGB). In individual cases, the injured party may be obliged to be satisfied with a defective repair from Section 254 (2) of the German Civil Code (BGB) because a faultless repair would cost disproportionately more. A decrease in value caused by the recognizable unevenness can then remain. According to Section 249 (1) BGB, the injured party has the right to complete restoration, so that in such cases at least the remaining depreciation, which is also reflected in the lower sales value of the vehicle, can be replaced.

Mercantile depreciation in motor vehicles

The mercantile depreciation relates to the theoretical loss in value that would occur if the car were sold. In view of the fact that two identical used cars are offered on the market, the accident-free vehicle usually achieves a better sales price than the repaired vehicle. Courts calculate the depreciation in difficult cases with the help of an expert opinion . In addition to the age of the vehicle, mileage, replacement value and repair costs, the calculation must also take into account the condition of the vehicle, number of previous owners, number of previous damage and, above all, marketability. These factors are taken into account in the Sacher-Wielke formula established in Austria .

In the earlier case law, the view was held that depreciation could only be granted up to an age of the vehicle of no more than five years and a mileage of up to 100,000 km. This view is now considered outdated, as these limits were introduced at a time (1960s) when vehicles were hardly older than 10 years and also hardly lasted more than 100,000 km. This means that if the vehicle is in good condition, older vehicles can also suffer mercantile depreciation. In June 2009, the LG Berlin even affirmed a mercantile inferior value for an eleven year and three month old car with a mileage of 183,502 km. A specific decision by the BGH on this question is still pending, but it has already indicated in its decision of November 2004 that it no longer considers these limits to be mandatory.

Inadequate repairs are not considered to be inferior. If the repair has not been carried out properly, the vehicle owner must file a complaint with the repair shop.

Technical depreciation in motor vehicles

A technical decrease in value exists if it is not possible to restore the vehicle to the same technically functional condition as it was before the accident. So there is still some damage left that cannot be repaired. The technical depreciation can relate to the usability, the operational safety or the appearance of the vehicle. Today's automobiles can usually be technically flawlessly repaired by qualified body shops. Reshaping instead of replacement, particularly load-bearing vehicle parts ("frames"), for example on straightening benches, is a permissible repair method. In the event of severe damage that does not allow complete recovery, the affected components must, however, be replaced. If the damaged frame parts are made of high-strength steels, reshaping can change the metal structure and reduce strength. In this case too, the affected components usually have to be replaced.

However, it is also possible, for example, that the curb weight of a truck increases due to a professional frame repair and thus the payload decreases. This then represents a technical impairment.

calculation

The BGH has established principles for determining the reduced value and demands that the reduced value should be determined, in particular under continuous observation of the regional and supra-regional market. He always called the calculation method of Ruhkopf-Sahm appropriate, which other courts also use. According to this method, the depreciation is a percentage of the sum of the replacement value and the expected repair costs.

Thereafter, the reduction in value is x% of the sum of the replacement value and repair costs. If the ratio of the repair costs to the replacement value in the 3rd and 4th year of registration is between 60 and 90%, the factor x according to the above calculation method is equal to 5. If the ratio is 30-60%, the factor is 4 and below 3.

In addition, there is a historical curiosity of the Ruhkopf formula to report: In current case law, the minor damage limit is interpreted as 10% -40% of the current value . This is based on a printing error in the publication of July 1, 1962. Originally, however, the new value was meant here, this was explicitly stated by Ing.Karl Hans Sahm in a statement dated April 17, 1970. However, this addendum was never included in the practical calculation or in case law.

However, this scheme has not been adapted or revised since 1962 and is increasingly being viewed by the lower courts as outdated. It does not take into account the latest developments in the repair sector (swapping instead of straightening) and does not include an assessment of the relationship between labor costs and material costs. The expert organization DEKRA, for example, basically no longer uses the Ruhkopf-Sahm method , but prefers the half -grown method (The mercantile lower value, abbreviated by E. Halal-growing, (Zeisberger / Neugebauer-Püster), 13th edition). This calculates the upper assessment limit of the mercantile depreciation from the new price (UPE) and the sales value of the vehicle, the age and the mileage , the total repair costs as well as wage and spare parts costs. Previous damage and the number of previous owners must also be taken into account when using this method. There are also other methods, such as B. the so-called Hamburg model , a method for estimating the mercantile depreciation of vehicles, and that of the BVSK (Federal Association of Freelance and Independent Experts for Motor Vehicles eV). So far, none of the methods has established itself as binding.

Minderwert.de fahrzeugwert.png
Minderwert.de fahrzeugalter.png


Reduced value calculation models depending on various parameters

In 2012 Helmut Zeisberger (Dekra) published another calculation method, the market relevance and factor method (MFM). This should provide a modern method for computational support in determining the mercantile depreciation. This method takes into account both legal and technical conditions, possible market changes as well as vehicle features and advancing technical developments.

On minderwert.de the course of the mercantile depreciation for the parameters repair costs, vehicle value and vehicle age is graphically displayed. The representation also provides a graphic comparison of different calculation methods.

International

Belgium :

Depreciation is possible if the vehicle is not older than one year and there is serious damage.

Austria :

There are essentially three formulas available with which the mercantile depreciation can be calculated.

The so-called association formula , a method used by the Association of Austrian Insurance Companies, was developed at the end of the 1970s. It is mathematically simple and is based on the formula by Ruhkopf-Sahm (1962). Age and repair costs are essential parameters.

The Sacher-Wielke formula was developed by the two court experts Sacher and Wielke and has been used primarily in court proceedings since the 1980s. It is constantly being adapted and perfected to the changing consumer behavior. The “distrust and discomfort” of a potential buyer towards pre-damaged, albeit properly repaired vehicles, which is the legal premise according to Austrian judicature, limits the group of buyers. For this reason, vehicles that are no more than four to five years old (with no rigid age or mileage limit) with a maximum of one previous damage from a damaging event are subject to a “mercantile depreciation”. Factors of the evaluation are vehicle age, number of owners, mileage, type and extent of damage, previous damage (damage to painted bumpers are not taken into account), painting costs and marketability (annual depreciation).

The underlying ideas and the mathematical algorithm can be found in the manual for the Sacher-Wielke formula. An article dealing with major recent developments was published by the court experts Kamelreiter, Kersche and Wielke in the magazine for traffic law 1/2011. According to the problem, the formula is mathematically complex and up-to-date (free download option, see web links). In contrast, three other court experts in the same journal took the view that the Sacher-Wielke formula was inadequate, that the determination of the mercantile depreciation was not an accident analysis problem and that the Salzburg formula should be preferred.

In 2010, a group of independent court experts for vehicle repairs and valuations from all over Austria developed the Salzburg Formula, a new method for quantifying mercantile depreciation, which primarily focuses on the wear and tear of the vehicle characterized by the elimination of fixed age and mileage limits, which takes into account the more recent case law on mercantile impairment. The theoretical foundations of the Salzburg formula were published in a comprehensive specialist article in the journal for traffic law (Kodek / Ottlyk / Pfeffer, Die Salzburger Formel, ZVR 2010, p. 286f). The Salzburg formula is now used both in and out of court throughout Austria and has established itself as the most modern tool for determining mercantile depreciation. In 2014, the Salzburg formula was included in the expert software KFZ5 from Audatex -GTL-Data. A variant of the Salzburg formula specially derived for two-wheelers is available for calculating the impairment of motorcycles with the Freitag-Pfeffer-Formula . The Salzburg formula has also been available for trucks since 2013.

Switzerland :

Depreciation is only paid for vehicles that still have a current value of at least 60% of the new value, are newer year of construction and have been badly damaged. The amount of the impairment is determined by the expert.

literature

Web links

Individual evidence

  1. ↑ OLG Saarbrücken, judgment of May 16, 1994, Az .: 4 W 174 / 94-12
  2. ↑ BGH NJW 2013, 325
  3. ↑ OLG Stuttgart, VersR 1961, 912
  4. ↑ Reinhard Halbgewachs, The mercantile deficit in older vehicles , in: NZV 2008, p. 125
  5. ^ LG Berlin, judgment of June 25, 2009, AZ 41 S 15/09
  6. ^ BGH, judgment of 23 November 2004, Az .: VI ZR 357/03 = NZV 2005, 82
  7. ↑ BGH NJW 1980, 281 = VersR 1980, 46
  8. ^ Rolf Ruhkopf / Karl Hans Sahm, About the measurement of the mercantile inferior value , in: VersR 25-1962 of July 1, 1962, pp. 593–597
  9. ↑ cf. u. a. in detail BGH NJW 2005, 277; BGH NJW 1980, 281; OLG Hamm DAR 1987, 83
  10. ↑ cf. im Winzelnen Palandt-Grüneberg, BGB commentary , 73rd edition 2014, on § 251
  11. ^ Letter from Karl Hans Sahm, April 17, 1970.pdf
  12. ↑ a b E.Halbgewachs, Helmut Zeisberger, Manuela Neugebauer Puester: The mercantile reduced value, Kirschbaum Verlag Bonn, 13th Edition 2003, ISBN 3-7812-1581-4
  13. ↑ Calculation of the mercantile depreciation according to half-grown. Retrieved June 9, 2015 .
  14. ↑ OLG Hamburg, VersR 1981, 1186
  15. ↑ For details see R. Fucik et al. (Ed.): Handbook of traffic accident, part 2 , Manz-Verlag 2008.
  16. ^ Bernhard R. Wielke: " Estimation of depreciation and replacement value, dealer purchase (forecast value) "; Value 2013; Description and manual (PDF; 4.3 MB)
  17. ↑ Friedrich camel riders, Franz Kersche, Bernhard Wielke: " Mercantile impairment - a fictitious problem ." In: Zeitschrift für Verkehrsrecht, 1/2011, pp. 4–8 (PDF; 130 kB)
  18. ↑ Friedrich Nagl, Gerwich Riautschnig, Ludwig Gwercher: Mercantile impairment. In: Zeitschrift für Verkehrsrecht, 12/2011, pp. 384–389. On-line. (PDF; 137 kB)
  19. ↑ Kodek / Ottlyk / Pfeffer, Die Salzburger Formel, ZVR 2010, pp. 286-293. On-line.
  20. ↑ GTL-Data: Depreciation according to Sbg. Formula in vehicle 5 from vehicle 5 version 5.17.00. (PDF) In: Customer information. April 28, 2014, accessed September 24, 2019 .