In this decision, the German Federal Supreme Court was once again concerned with the question of the extent to which car rental costs are to be reimbursed by the tortfeasor following a traffic accident, a question which has been frequently discussed in Germany in the last few years. The following set of facts, typical in practice, served as the starting point. The plaintiff's car, a BMW 316 i, was damaged in a car accident on 12 February 1993; in the circumstances it was undisputable that the first defendant and his liability insurer (who was also a defendant) were liable in full. Through the offices of the garage where the car was being repaired, the plaintiff rented a BMW 316 i at a daily rate of 330.- DM as of the afternoon of the accident. Since the expert appointed to assess the damage concluded that there would be considerable repair costs and that the time needed for the repairs would probably be in the region of 10-11 days, the plaintiff refrained from having the accident vehicle repaired, acquired a new car, and returned the rented car on 26 February 1993. Altogether the rental costs for the car amounted to 5, 926. 96 DM on the basis of a so-called 'accident replacement rate'.
In this type of case the decisive question with which practitioners have had to deal is whether a claim for the reimbursement of car rental costs in accordance with the so-called 'accident replacement rate' exists, or whether such a claim is limited to the 'normal rate' that would apply in non-accident related business: the latter commonly being considerably cheaper. The view of the Supreme Court was that a party who suffers loss in a traffic accident does not generally breach his duty to mitigate the damage if he rents a replacement car at a rate that is reasonable within the framework of the so-called 'accident replacement rate'. The expenditure that a sensible person, conscious of economic considerations, would make on finding himself in the position of the injured party must be seen as necessary expenditure within the meaning of § 249, second sentence of the Civil Code. In such circumstances, the injured party does not need to undertake some form of market research before renting a replacement car, in order to identify the cheapest offer. As long as the rate paid remains within the range of what is considered normal, the sums paid out by the injured party are to be reimbursed. Since those seeking car rental services who have suffered a car accident are only offered accident replacement rates by car rental firms, it follows that there will normally be a duty to reimburse the payment of accident replacement rates that are to be found within the range of what is usual.
The following comments examine the legal situation in Austria (Hammerschall), Belgium (De Temmerman) and Switzerland (Werro). In the process, further questions that arise out of the reimbursement of car rental costs in these countries are also discussed.European Review of Private Law