Rental car after an accident: why a smaller vehicle can still cost too much

The BGH case: five days with a replacement car for EUR 1,604.57

A VW Multivan was damaged in a road accident. During its five-day repair, the injured party rented a VW Tiguan. Under the Schwacke classification used in the proceedings, the Multivan was in class 9 and the rental car in class 7. Including additional services, the invoice totalled EUR 1,604.57. The other party’s motor liability insurer initially paid EUR 523. Its liability for the accident was not disputed in principle (Federal Court of Justice, judgment of 19 May 2026, VI ZR 67/25, paras. 1 to 6).

The local court awarded a further EUR 452.48. The claimant did not obtain the remaining EUR 629.09 on appeal or before the Federal Court of Justice. His argument that the smaller car cost only slightly more than a reasonable replacement in the higher class did not succeed. His appeal on points of law was dismissed at his expense (operative order and paras. 6, 7 and 24 to 30).

A smaller car does not create a freely available budget

Section 249(2), sentence 1 of the German Civil Code provides for reimbursement of the amount required to remedy the loss. According to the Federal Court of Justice, a rental invoice must be assessed by reference to what was necessary for the vehicle actually rented. An expensive rate does not become reasonable merely because a larger replacement vehicle could have cost a similar amount. In reaching this conclusion, the court chose between two previously competing methods of calculation (paras. 15 and 24 to 30).

This does not impose a duty always to choose a lower vehicle class. Renting an equivalent replacement remains possible in principle. Where a claimant voluntarily chooses a lower class, the court may decide not to deduct the running costs saved by not using the claimant’s own vehicle. This is a matter for the court’s discretion, not an automatic entitlement to a discount or a justification for any rental price (para. 28).

How much price comparison is reasonable after an accident?

The starting points are the rates available on the relevant local market and the particular circumstances. The Federal Court of Justice does not require an unlimited search for the cheapest offer. It does, however, consider price enquiries reasonable, especially where a rate appears unusually high. Depending on the circumstances, enquiries with one or two competing providers may be called for. Urgency and individual difficulties form part of the assessment (paras. 16 and 31 to 38).

Higher costs may also be recoverable if a substantially cheaper standard rate was inaccessible in the particular circumstances despite reasonable efforts. The injured party must set out the relevant facts and, where necessary, prove them. In this case, 17 days elapsed between the accident and the start of the repair. No particular urgency or emergency had been established. That interval is not a general statutory waiting period (paras. 31 to 33).

An insurer’s offer requires a separate assessment

A cheaper rate that is readily accessible may limit reimbursement under the duty to mitigate loss in section 254(2) of the German Civil Code. The actual opportunity to rent matters. In these proceedings, the Federal Court of Justice expressly left open whether the insurer’s letters contained an alternative offer that could readily be accepted. The judgment therefore does not mean that every letter offering to arrange a rental is binding or may be disregarded (paras. 17 and 18).

Our practical assessment: compare more than the daily rate. Vehicle class, rental period, availability, insurance excess and required additional services should be comparable. Keep the insurer’s letters and your responses. This helps establish later which options were actually available.

Why a rental invoice is not treated like a repair invoice

The principles governing repair-shop and expert-assessment risks did not justify further reimbursement in this case. Rental prices are generally easier to compare than technical repair work is to supervise. Simply trusting the rental company to calculate a suitable accident-replacement rate was not enough here. The particular circumstances of the rental must nevertheless be considered (paras. 34 to 38).

Nor is the price list used a nationally binding tariff. Courts estimate necessary costs under section 287 of the German Code of Civil Procedure. The Federal Court of Justice approved the estimate in this case; specific alternative offers at the relevant place and time can call the chosen basis for estimation into question (paras. 20 to 23 and 39 to 40).

Documents that help when reimbursement is reduced

Our recommendation based on the judgment: document the rental, where possible, before entering into the contract. If reimbursement is reduced, the actual need for a vehicle, the choice of rate and the services provided should be assessed together. The size of the replacement car alone does not decide the dispute.

• Keep the rental agreement, complete invoice and payment records.
• Save offers showing the date, vehicle class and all additional charges.
• Record when your own car became unavailable and when the repair began and ended.
• Document urgency, availability problems and unsuccessful price enquiries in specific terms.
• Collect the insurer’s letters, its reasons for the reduction and the previous correspondence.