Summary:
an immediate rescission of the contract justifying the interest of the purchaser or a relevant interest, without requiring a previous period instead of performance can be, generally be presumed if the seller has concealed the buyer a deficiency of the sale of fraudulently.
an immediate rescission of the contract justifying the interest of the purchaser or a relevant interest, without requiring a previous period instead of performance can be, generally be presumed if the seller has concealed the buyer a deficiency of the sale of fraudulently.
Issue:
bought a notarized contract of the plaintiff by the defendants in a house property to the exclusion of liability for defects. Having on the claim that during heavy rains penetrate - what the defendant had fraudulently concealed - Surface and ground water in the garage and the basement of the house of one who has declared the plaintiff to withdraw from the contract. He has applied for costs against the defendant for the payment of 257 030, 38 € (purchase price and reimbursement of contract costs) train to train against restitution of the property and the finding that the defendants were obliged to spare further damage and would find himself to the withdrawal of the property in default .
decision:
1) The district court allowed the claim, in essence, the Higher Regional Court dismissed her. The Senate approved the revision of the claimant before the dispute has been declared over and done, seeks the restoration of the land court ruling.
2) The appeals court affirmed a defect of the purchase property. It has also assumed that the defendants agreed to the disclaimer could not rely, as they were silent fraudulently concealed the defect. It has a right of withdrawal is not however considered necessary because the plaintiff does not under § 323 para 1 BGB have put sufficient time to remedy. Subsequent performance is neither impossible nor un-reasonably have been even more exceptional was the deadline was not necessary according to paragraph 2 of the provision. A serious and final refusal of performance by the defendant are not available. Fraudulent stopped to join the gene defect alone do if the remedy to be performed is generally not personally not unreasonable.
3) These statements have not stood up to legal examination revision. By the plaintiff asserted claims for repayment of the purchase price after § § 437 No. 2, 323, 346 BGB and for expenses or damages under § § 437 No. 3, 280, 281, 284 BGB could not with that given by the Court of Appeal reasons be denied.
4) The court was also assumed that the insufficient protection of the garage and the basement from flooding lack of a home sold the property dartsellt, which was concealed by the defendants at the conclusion of the contract fraudulently. It follows that the defendant may plead not on the agreed disclaimer, see § 444 BGB .
5) a) A fraudulent concealment requires that the seller Error knows him or at least keeps possible, and it is sufficient that he knows the circumstances giving rise to the error (or believes may happen). Whether he classifies as legally correct errors in the legal sense, on the other hand is irrelevant (Senate, ruling of 7 March 2003, V ZR 437/01, NJW-RR 2003, 989, 990). In this way - will not be a fraudulent act in the negative, arguing that the defendants kept the risk of occasional flooding of the "norm" - contrary to the view of the appeal response. Relevant and sufficient but only that they that danger, which alone has justified the defect, according to the findings of the court was actually known.
b) addition to the knowledge of the defect is a malicious act of Ver-ahead next buyer that he knows, or at least expects it, and tacitly accepted in assumes that the buyer does not know the error and disclosure of the contract would not have agreed or not with the content of closed (established case law of the BGH, see only the Senate, ruling of June 10, 1983, V ZR 292/81, WM 1983, 990; ruling of March 20, 1987 , V ZR 27/86, NJW 1987, 2511, ruling of 7 July 1989, V ZR 21/88, NJW 1989, 42, ruling of 7 March 2003, V ZR 437/01, NJW-RR 2003 , 989, 990). From such a least-related Intent of the defendant assumed the appellate court without legal error.
6) require Grundsätztlich entry into force of the law of obligations Modernization Act of withdrawal from sale due to a defect as well as the fact-based demand damages instead of performance, as well as reimbursement of expenses of the unsuccessful procedure requires a period of grace. The primacy of the subsequent performance results for the resignation of § § 437, No. 2, 323 para 1 BGB and for damages or reimbursement of expenses § § 437, No. 3, 281 para 1 sentence 1, 284 BGB .
7) This is not the exception, see § § 281 para 2, 323 Section 2, 440 BGB. One exception in particular in when there are special circumstances which justify weighing the mutual interests of the immediate training exercise the right of rescission or claim for damages or reimbursement of expenses claim (§ § 281 para 2 Alt. 2, 323 Section 2 No. 3 BGB ). An immediate rescission of the contract justifying overriding buyer interest is the literature and in judicial case law overwhelmingly in the affirmative, even if the seller to the purchaser a defect known to him at the close of the sale contract has concealed.
8) Dem tritt auch der BGH bei. Hat der Verkäufer beim Abschluss eines Kaufvertrages eine Täuschungshandlung begangen, so ist in der Regel davon auszugehen, dass die für eine Nacherfüllung erforderliche Vertrauensgrundlage beschädigt ist (so bereits BGHZ 46, 242, 246 zu § 634 Abs. 2 BGB a.F.). Dies gilt insbesondere, aber nicht nur, dann, wenn die Nacherfüllung durch den Verkäufer selbst oder unter dessen Anleitung im Wege der Mängelbeseitigung erfolgen soll (Lorenz, NJW 2004, 26, 27). In solchen Fällen hat der Käufer ein berechtigtes Interesse daran, von einer weiteren Zusammenarbeit mit dem Verkäufer Abstand zu Take to protect themselves against possible renewed Täuschungsversu Chen.
9) The are regularly compared to any relevant interests of the seller. The opportunity to subsequent troubleshooting the seller gains but only if accompanied by the lack at the close of the sale contract not known. Did he know him, he can eliminate him before conclusion of the contract and make the thing in a contractual condition. The chance to avoid a later rescission of the contract, the seller, therefore, in this case in advance of the contractual Relations given. However, the seller decides to remove the defect not and sell the thing in a non-conforming condition, there is no reason to grant him after the discovery of the defect by the buyer is a second chance. The so vendors acting is not deserving of protection against risks associated with the rescission of the contract economic disadvantages. Measured
10) it in the present case, a period of grace was not necessary because the defendants at the conclusion of the purchase contract, the existing flood risk have not been disclosed. Is irrelevant, for what Why the defendant did not fulfill its disclosure obligation, so that not to complain that the appellate court decided not to related findings of fact. The 2nd to § § 281 para 2 . Alt, 323 Section 2, No. 3 BGB offered balance of interests to justify namely an immediate assertion of rescission, damages and reimbursement of expenses, even if the defendants - as stated by the appeal response - that they know the danger of flooding as a "normal" and therefore not should be regarded as a defect in the legal sense. This can not account for the charge of fraud (so), nor shall the conduct of a defendant from the perspective of the plaintiff for evaluating the reasonableness significantly different weight.
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