BGH ruling: Who owns the embezzled test drive vehicle?

In August 2017, a man shows interest in a test drive with a high-priced Mercedes worth over 52,000 euros. After presenting an Italian passport, a driver's license, and a residence confirmation from Germany, the dealership hands over the car for a one-hour test drive – and waits in vain for its return. It turns out that the submitted documents were forged. Both the car and the driver are nowhere to be found.

A few days later, a woman comes across an advertisement on the internet: the Mercedes is being offered for sale. She contacts the seller, and they arrange a meeting at Hamburg Central Station for the handover. The woman asks to see the ID of the supposed owner, receives the registration papers and keys, and pays 46,500 euros in cash.

Who Owns the Car?

But during the registration process, the issue was revealed. The authorities refused the registration; the dealership reported the Mercedes as stolen. Now the question arises: Who is the rightful owner, the bona fide purchaser or the dealer from whom the car was stolen?

The plaintiff car dealer continues to see herself as the actual owner and claims the return of the Mercedes. It was only provided for a test drive. The buyer should have been suspicious due to the dubious circumstances of the purchase. However, the court ruled differently.

Buyer is the Rightful Owner

It is fundamentally possible to acquire ownership even if one does not buy from the owner, provided one acts in good faith. Due to the highly professional fake papers, the buyer could assume she was making a legitimate—and thus good faith—purchase.

The special circumstance that such an acquisition takes place under unlawful conditions is considered in the German Civil Code (BGB). According to § 935, even a good faith acquisition is not lawful if the item was previously stolen. However, the Federal Court of Justice (BGH) decided, after lower courts were divided on this matter, that the dealership relinquished control of the Mercedes to the test driver. By voluntarily handing it over, possession was also transferred, and the car was not stolen but embezzled.

A Question of Ownership

Thus, the buyer was able to acquire ownership in good faith and claim the original papers from the dealership. The plaintiff car dealer only has a claim for damages against the supposed test driver. However, he must first be found.

What Does This Mean?

The ruling will make car dealers think twice. It is not the first time a car has not been properly returned. The fact that the law now spoken hardly corresponds to the sense of justice only amplifies the risk of potential damage due to insufficient precautionary measures by dealers. Those who want to take a test drive in the future should expect further restrictions. These might include additional technical tracking services or allowing the test drive only in the presence of an official passenger.