Manufacturer's deceit is not attributed to the dealer

Anyone pursuing claims in connection with a vehicle sooner or later runs into limitation. The ordinary period has long expired – so it is argued that the manufacturer acted deceitfully and that the long period therefore applies. The only question is: against whom?

The construction

Where there is deceit, the period is extended considerably. That, however, affects only the party to whom the deceit is attributable. In the proceedings it was argued that the manufacturer's deceitful conduct was to be attributed to the dealer – that the dealer must accept responsibility for the conduct of a person of whom he makes use in performing the contract (Erfüllungsgehilfe, vicarious agent, § 1313a ABGB).

The decision

The Supreme Court rejected that attribution, referring to its existing case law (9 Ob 21/22m, 9 Ob 55/23p). The reasoning is simple and carries far: in selling a vehicle, the authorised dealer does not make use of the manufacturer. He sells in his own name and for his own account; the manufacturer is his supplier, not his agent vis-à-vis the purchaser.

The claims against the dealer therefore remained time-barred. In the same breath the Court confirmed that the merely apprehended lack of legal stability of the EC type approval does not constitute a defect in title as long as the approval is in force.

For completeness: the appeal failed only as against the first defendant, the dealer. As against the second defendant, the manufacturer, the Supreme Court allowed it – in these proceedings the two defendants simply do not stand side by side in law. That is precisely the practical message of the decision.

What follows from this

For purchasers: the choice of opponent determines the period. Anyone relying on deceit must prove it against the party they are suing. On this case law, that route does not succeed against the dealer.

For dealerships: the decision protects them from liability for events in production over which they have no influence. Their own statutory warranty for the vehicle sold remains unaffected.

Two sets of proceedings decided on the same day – 6 Ob 177/23g and 6 Ob 175/23p – were decided to the same effect.