No rescission right for kilometer leasing contracts according to §506 BGB (BGH, judgment of February 24, 2021 - VIII ZR 36/20)

The (supposedly) cheapest way to get out of a car leasing contract is undoubtedly the revocation. How and under which conditions this is possible is defined by law for residual value leasing in Section 506 of the German Civil Code (BGB). However, the extent to which revocation is permissible and enforceable in the case of mileage leasing has not yet been clarified. In its ruling of February 24, 2021, Case No.: VIII ZR 36/20, the Federal Court of Justice (BGH) has now conclusively clarified that there is no statutory rescission right for the revocation of a kilometer leasing contract based on this circumstance alone.
“A lease agreement with mileage accounting does not meet the requirements of the provision of Section 506 (2) sentence 1 No. 1 to No. 3 of the German Civil Code (in the version applicable at the time of the conclusion of the agreement and still applicable today) because it does not provide for an obligation to purchase on the part of the lessee or a right to tender on the part of the lessor, nor does it provide for a residual value guarantee on the part of the lessee.”
(Press release BGH, No. 039/2021)

What leasing models are possible?

Basically, two different consumer models occur in practice: residual value leasing and mileage leasing. In the first case, the value of the vehicle at the end of the leasing period is estimated when the contract is concluded. After the vehicle is returned, the resale value is then precisely determined; if it is lower than the value estimated at the time the contract was concluded, e.g. due to dents, scuffs or excessive wear and tear, the buyer must make up the difference. If the value is higher, he will be reimbursed the difference in return. Mileage leasing, on the other hand, specifies in advance how many miles the customer will drive the vehicle. If he covers more kilometers with the vehicle than agreed, he must pay a flat rate for each additional kilometer. Should he drive less, he will be refunded the money here as well.
Regardless of the leasing model, customers can additionally agree with the leasing company that the vehicle can or even must be taken out of the contract at the end of the term.

What about the rescission right now?

Leasing contracts between consumers and entrepreneurs are contracts “for the use of an object against payment”. Thus, the requirements for revocation are generally based on the following criteria. according to § 506 BGB. Unlike residual value leasing, mileage leasing contracts are explicitly not included in the list. Until now, it was unclear whether this loophole might be an unintended loophole and whether the legislator had simply “forgotten” to include mileage leasing. It has also been argued in some quarters that mileage leasing is merely a method of circumventing the rescission right. In this respect, Section 511 sentence 2 of the German Civil Code, which is aimed at circumvention transactions, should apply. This then refers again to § 506 BGB, so that in the end there is a statutory right of revocation.
The BGH has now expressly contradicted this assessment in the present case. Neither is the choice of a long-standing and established type of contract a circumvention transaction, nor is there an unintended regulatory gap. The BGH thus aligns its case law with the assessment of interests in the European Consumer Sales Directive, which assumes the existence of a consumer credit and thus the existence of a right of revocation only if the contract triggers the lessee’s obligation to purchase. However, the contract may still be revocable because it was concluded at a distance, for example.

If you have any questions, we will be happy to advise you in detail on the subject.