OLG Hamm; 2019-01-28; 2 U 98/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2019:0128.2U98.18.00
Date: 2019-01-28
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0128(51)_ENG_SUMJURE
JURE summary
JURE summary
An entrepreneur engaged in equestrian sports who runs a large stud farm in England (hereinafter ‘the plaintiff’) sought the reversal of a horse sale by means of an action brought by an organiser of horse auctions (hereinafter ‘the defendant’) and also asserted other claims for expenses and damages.
The plaintiff bought a three-year-old mare ‘X’ in an auction in autumn 2015. From her arrival at the plaintiff's, the horse had shown a clear lameness, which would have been present at least latently on the day of the auction. The lameness was not curable. She bought the horse as a consumer and therefore had the right to withdraw from the contract.
The defendant claimed that the mare ‘X’ showed no lameness or other abnormalities. Both an examination before her inclusion in the action lot, including a number of x-rays, and other veterinary inspections had remained clear of issues.
According to a report following an investigation initiated by the plaintiff, ‘X’ showed a slight lameness on the ankle joint attributable to joint inflammation and this was readily curable. The plaintiff did not agree to a purchase price reduction proposed by the defendant.
The Landgericht Münster (hereinafter ‘the Court of First Instance’) upheld the claim except for part of the interest claimed. The basis was an expert opinion by a veterinary expert. The horse had a defect in the form of lameness. In favour of the plaintiff, the Court of First Instance invoked § 476 of the Bürgerliches Gesetzbuch (German Civil Code) - on the basis of the personal data and tax documents submitted by the plaintiff, it viewed her as a consumer.
According to the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’), the defendant's appeal was well founded.
The international jurisdiction of the German courts is derived from Article 4(1) of the Brussels I Regulation (recast) (1).
The plaintiff did not sufficiently prove that the mare ‘X’ already had a defect at the time of the transfer of risk (2). Even if the radiological changes (3) described in the expert opinion of the expert called upon by the Court of First Instance were known before the auction, they would not constitute a defect without clinical manifestations. Even in the case of an animal with a high purchase price, the buyer cannot expect it to correspond to an ideal. A certain risk for the development of clinical symptoms does not affect the contractually required use of the riding horse.
The plaintiff cannot be regarded as a consumer. Although the plaintiff is not a horse dealer who regularly sells animals for its own profit, the plaintiff admitted in the application that it buys sport horses and it sells those which do not meet its expectations as riding or breeding animals.
The plaintiff pursues an independent and systematic sales activity, characterised by a certain permanence, the purpose of which is to regulate the losses and costs of a sporting tournament. It thus fulfills the criteria for trading company (4).
The Court of Appeal amended the judgment of the Court of First Instance and dismissed the plaintiff's action in its entirety.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) According to the general terms and conditions date of award.
(3) Rear hoof angle too small and slight sclerosis.
(4) § 14(1) of the German Civil Code.