Well, they’re back, and stupider than ever!
When they sent me an invoice over the amount of the repair, plus a hefty fee for handling it, they referred to the retention (own contribution) of the comprehensive coverage. I pointed out that I wasn’t responsible for the damage, and thus, according to a verdict by the Landgericht Baden-Baden (State Court), wasn’t liable. I cited, as you normally do in Germany, the file number of the verdict. And, for good measure, I pointed out that according to § 309 Nr. 12 BGB the burden of proof can’t be reversed in this case – i.e., if they claim that I am responsible and thus liable, they have to show so, not me show that I am not.
The rental company came back with an absurdity of a letter that I just had to scan and post.
and here’s the relevant part of the text:
“Acc. BGH*-jurisdiction we are forced, as a commercial car rental company, to shape our comprehensive coverage on the general orientation of the compulsory comprehensive coverage. There, the retention must always be paid by the insurant, independent of whether he caused the damage or not.
This basic principle is also valid in the relationship between us and the leaser, so that the leaser is always liable for damages to the [company name redacted]-vehicle that arise during the time of the lease, whether caused by him or an unknown third party.
As the person responsible for the damage cannot be named by you, the claim asserted here has to be covered by you.”
* BGH = Federal Court of Justice
Let’s see – that a lot of lies and distortions of the truth for three short paragraphs. And don’t you just love that vague reference to the BGH?
First of all, there is no such thing as “compulsory comprehensive coverage”. There plain and simple isn’t! You must insure your car and yourself for damages to others, but that’s all.
Secondly, there is no BGH-jurisdiction on this issue, as the BGH does not dispute imaginary mandatory insurances.
Also, the leaser is not always liable for damages, for two simple reasons: Verdict File No. 5 S 19/06 of the Landgericht Baden-Baden from 12.06.2007 says so. As do, by the way, the General Terms of Lease of the car rental company on question. Paragraph 10a specifically says that the leaser always is liable “unless neither he or the driver is responsible for the damage.”
Furthermore, the Conditions for Comprehensive Coverage specifically refer to this Paragraph 10a of the General Terms of Lease: “You are principally liable for damages according to Paragraph 10a of our General Terms of Lease.”
So, where exactly does it say that I am always liable? There is a specific exception listed, in case I am not responsible. Then, I am not liable! Basta! Fine! Ende! Fini! 结束! Over and out!
I wrote back, sarcastically asking them to explain what “compulsory comprehensive coverage” is, and what specific verdicts of the BGH addressed it. No answer, only a pre-collection letter, to which I replied by registered letter with reply advice.
Also, what were they thinking? They replied to a letter from someone who cited the file number of a pertinent verdict, and the pertinent paragraph of the pertinent code for their logical next move (trying to shift the burden of proof). Do they really think such a meagre smoke screen of a threat as the passage I cited above will make the person who wrote that letter to them budge and pay? Seriously? What ARE they smoking in that office……?????
Well, if you ever rent a car in Europe, I can only recommend you don’t choose a company that reminds you of that fact.
EDIT: they folded! YAY!