Calculation of Damages when Returning Wrong Pet

When buying a pet all hearts are high. All hearts are low when it turns out the pet bought has flaws that lead you to return it to the vendor. BGH gave rules on November 19, 2008 (re VIII ZR 311/07) on how to calculate the reimbursements for "use and wear of" the pet to the vendor upon cancelling the contract.


Though animals are not things (§90a BGB) nevertheless the rules on tangibles are to be applied accordingly to pets. Besides, when you cancel a contract, you are normally obligated to return to the vendor the bought item (§346 I BGB). However, when this is not possible, then the worth of the use is to be returned (§346 II 2 BGB).

In July 2005, the plaintiff sold the gelding Locarno with the "sales price in kind" to Jockee. And Jockee promised to pay the then 17 year-old plaintiff all costs to obtain a driver's license. At first Jockee, in his capacity as driving instructor, gave the driving lessons. After some time both agreed that the plaintiff had better switch to a different school, which did happen. After finishing the driving school, the plaintiff demanded to be reimbursed for the driving lesson costs which Jockee did not pay. Jockee being in default, the plaintiff cancelled the contract and demanded the horse back. Jockee considered himself unable to do so because in the mean time he had sold Locarno to his daughter.

The highest civil court in Germany, the BGH, held that in spite of the plaintiff's valid withdrawal Jockee cannot return Locarno. The value to be reimbursed to compensate the incapacity to return the horse is not the market value, as the lower courts held, but the value of the consideration - following §346 II 2 BGB. This means that the costs for the driving lessons have to be reimbursed, which happened to be in this case € 2,290.70.

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