References without law book default to BGB.

Case - Gas Station Car Wash

Facts

Bert (B) owns a gas station with an automatic car washing system. Anna (A) wants her car to be cleaned. She buys a ticket for the car washing system at the gas station shop.

Next to the checkout, there is a sign stating:
“No liability for damages to the paintwork caused by our washing system.”

A does not take notice of the sign. After A’s car has gone through the washing system, she recognizes several severe scratches on the hood, which had not been there earlier. These were caused by a defect in the machine that B did not recognize beforehand but was present for a couple of days.

Can A claim compensation?

Solution

Slides Solution

Issue I: Contractual Damages

• Issue: Can A claim damages from B in line with §§ 280 I, 631, 241 II, 249 et seqq. BGB?
• Rule: For such a claim, the following requirements must be met: (1) Obligation, (2) Breach of Duty, (3) Fault, (4) Damages. Furthermore, B’s liability must not be excluded by the terms written on the sign.
• Application:
  • 1. Obligation: → (+), § 631 BGB (contract to produce a work). Focus on success (= clean car). A & B entered into a contract by B offering the car washing service and A using it, both agreeing to that at the checkout.
  • 2. Breach of Duty: → (+), § 241 II BGB (duty of care towards property (car) of A).
  • 3. Fault: → (+), legal assumption (§ 280 I 2 BGB). Actually, he did not recognize the defect in the machine → negligence (§ 276 I, II BGB).
  • BUT: Liability excluded due to Standard Business Terms (SBT)?
    • a) Sign as SBT (§ 305 I BGB)?
      • Contract terms → (+)
      • Pre-worded → (+)
      • For more than two contracts → (+)
      • Presented by the user → (+)
      • Not negotiated → (+), A did not even take notice.
        → (+), it is an SBT.
    • b) Has the SBT become part of the contract (§ 305 II BGB)?
      • Explicit/clear visible notice → (+), sign was visible.
      • Opportunity to take notice → (+), A could have read it.
      • Agreement → (+), implicit agreement by using the service.
      • No surprising/ambiguous clauses (§ 305c BGB) → (+), exclusion of liability is often part of SBT.
      • Before entering contract → (+), presented before contract was formed.
        → (+), SBT became part of the contract.
    • c) Content control (§§ 307–309 BGB)?
      • § 309 No. 7 lit. b BGB: Prohibition of excluding liability for gross negligence or intent. The sign excludes all liability for all forms of fault, including gross negligence.
      • → (-), the term is prohibited. It is also incompatible with essential principles (§ 307 II No. 1 BGB).
    • Interim Conclusion: Term is ineffective (§ 309 BGB). Regular statutory provisions apply (§ 306 I, II BGB). No exclusion of liability!
  • 4. Damages: → (+), scratches on the car’s hood (§ 249 I BGB). Damages in addition to performance.
• Conclusion: A can claim damages from B acc. to §§ 280 I, 631, 241 II, 249 et seqq. BGB.

Issue II: Tortious Damages

• Issue: Can A claim damages from B in line with §§ 823 I, 249 et seqq. BGB?
• Rule: Requirements: (1) Harm caused to a protected right (property), (2) Action/omission, (3) Causality, (4) Unlawful, (5) Fault, (6) Financial loss.
• Application:
  • 1. Harm: → (+), A’s property (car) was harmed.
  • 2. Action/omission: → Omission. Is there a duty to act? → (+), duty to check thoroughly for defects in the machine used to render services.
  • 3. Causality: → (+), not recognizing the defect led to scratches.
  • 4. Unlawful: → (+)
  • 5. Fault: → (+), negligence (§ 276 I, II BGB). No exclusion by SBT (SBT generally only apply to contractual claims, but even if they did, the clause is void).
  • 6. Financial loss: → (+), car is less worthy, needs repair.
• Conclusion: A can claim damages from B in line with §§ 823 I, 249 et seqq. BGB.

Write-Up

Issue: Can A demand compensation from B for the scratched paintwork under contractual (§ 280 I BGB) or tortious (§ 823 I BGB) principles?

I. Contractual Claim for Damages

Issue: Can A demand compensation from B for the scratched paintwork under §§ 280 I, 631, 241 II BGB?

Rule: For a contractual claim for damages in addition to performance, there must be a valid obligation, a breach of duty, fault, and resulting damages, and liability must not be validly excluded by Standard Business Terms (SBT).

Application:
1. Obligation: A valid contract must exist. Buying a ticket to use an automated car wash constitutes a contract to produce a work (Werkvertrag) under § 631 BGB, as the focus is on a successful outcome (a clean car).

2. Breach of Duty: In addition to the primary performance duties, parties have a secondary duty of care (Schutzpflicht) to respect each other’s rights and property (§ 241 II BGB). Since the car wash machine severely scratched A’s car, B breached this duty to protect A’s property.

3. Fault: Under § 280 I 2 BGB, the debtor’s fault is legally presumed. B could exculpate himself, but the facts state he failed to recognize a machine defect that had existed for days. This constitutes negligence (§ 276 II BGB), so B acted with fault.

4. Exclusion of Liability (Standard Business Terms): We must assess whether the sign excluding liability is a valid part of the contract, which would block A’s claim.

• a) SBT Definition (§ 305 I BGB): The text on the sign is a pre-formulated contract term intended for multiple contracts and presented by B without any negotiation. Thus, it qualifies as a Standard Business Term (SBT).
• b) Incorporation (§ 305 II BGB): B explicitly posted a visible sign before the contract was concluded, giving A the opportunity to take notice. A implicitly agreed to the terms by proceeding to buy the ticket. The clause is not unusual or surprising for a car wash (§ 305c BGB). Thus, it became part of the contract.
• c) Content Control (§§ 307–309 BGB): A clause that limits liability for damages caused by gross negligence or intent is strictly prohibited and void under § 309 No. 7 lit. b BGB. Since B’s sign broadly excluded all liability for paintwork—which encompasses gross negligence and intent—the clause is entirely invalid. Due to § 306 I, II BGB, the contract remains valid, but the invalid clause is struck out, and standard statutory rules apply. Thus, B’s liability is not excluded.

5. Damages: A suffered a material damage (scratched paint) which can be measured monetarily (§ 249 BGB).

Conclusion: A has a valid claim for damages against B under §§ 280 I, 631, 241 II BGB.

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II. Tortious Claim for Damages

Issue: Can A also demand compensation under the law of torts (§ 823 I BGB)?

Rule: Under § 823 I BGB, anyone who intentionally or negligently unlawfully injures the property of another must compensate them for the resulting damage.

Application: A’s property (the car) was injured. This injury was caused by B’s omission (failing to inspect and maintain the machine properly). An omission establishes liability if there is a legal duty to act; B has a duty to maintain his commercial machinery to prevent harm to customers’ property (Verkehrssicherungspflicht). B acted negligently, and his omission was causal for the damage. The act was unlawful as there is no justification. As established above, the SBT exclusion clause is void and does not protect B. Finally, A suffered a financial loss requiring repair costs.

Conclusion: A also has a valid claim against B for tortious damages under § 823 I BGB.