Loss of use after an accident: does a borrowed family car count?

The BGH case: a damaged Porsche and an available replacement

A company leased a Porsche 911 and allowed its managing director to use it privately as well as for business. After an accident caused an economic total loss, the Porsche’s owner rented a replacement. The opposing insurer paid part of the rental costs. The company later sought loss-of-use compensation instead, relying on rights assigned by the director.

The Federal Court of Justice rejected that claim: the director could reasonably use the replacement, while the rental had already exposed the insurer to a claim for rental costs. The appellate judgment was set aside and the first-instance dismissal restored. The decision concerned the director’s assigned claim, not every possible claim of all parties involved (judgment of 7 October 2025, VI ZR 246/24, operative part and paragraphs 7 to 13, 19).

Three different replacement arrangements

The BGH distinguishes why another car is available. Simply saying that you still had transport does not resolve the legal question.

• Your own second car: if another vehicle of your own is available and reasonable to use, the required tangible loss of use is absent (paragraph 16).
• Help from uninvolved relatives or friends: a car they provide to bridge the gap generally does not exclude the claim. Their assistance should ordinarily not benefit the party liable for the damage (paragraph 17).
• A replacement provided by the affected vehicle owner: if the owner rents a car for the authorised user and this creates a rental-cost claim against the liable party, additional loss-of-use compensation is excluded where the replacement is reasonable (paragraphs 18 and 19).

What counts as a reasonable replacement?

A replacement need not offer the same prestige or driving experience. Those differences did not make it unreasonable in the BGH case. Everyday usability was the relevant issue. This does not mean that any replacement will always suffice: concrete limitations need to be explained (paragraph 20).

Our example: if your uninvolved sister lends you her car free of charge while yours is repaired, this differs legally from an unused second car of your own. It does not establish entitlement to any particular payment. Liability and its extent, the period of unavailability and your willingness and ability to use your car still need to be assessed. The BGH requires an intention and ability to use the vehicle and a tangible loss of use (paragraph 15).

A 2026 comparison: a spouse’s car is not automatically your own second car

In a later judgment, the BGH considered a defective engine repair and delayed remedial work. The customer’s wife had bought another car. The BGH held that the claim could not be rejected simply because he could use that family vehicle free of charge. It was not a previously unused second car of his own (judgment of 7 May 2026, VII ZR 20/25, paragraph 19).

For context, this was a repair-contract dispute, not an accident claim. The BGH did not finally award loss-of-use compensation. It remitted the case because further requirements had not yet been established (paragraphs 16, 20 and 21).

Family help does not replace evidence of the loss

A further comparison illustrates the need for specific facts: in a vehicle-purchase dispute, the Heilbronn Regional Court rejected loss-of-use damages because the intention and ability to use the car during the claimed period had not been sufficiently explained. The case also involved a holiday and several vehicles within the family and business (judgment of 14 August 2026, We 6 O 281/24, paragraphs 118 to 121).

Our assessment: this does not establish a general rule that every relative’s vehicle must be taken into account. The BGH’s distinctions still matter. Anyone seeking compensation should nevertheless give a clear account of actual vehicle use and the individual days of unavailability.

Documents that help when the insurer reduces payment

Prepare a short timeline covering the accident, the workshop stay or replacement purchase, and the vehicles available at each stage. Where possible, add the following:

• Expert report, repair documents and evidence of when the period of unavailability began and ended.
• The damaged car’s owner and previous user, including the use agreement for a leased or company vehicle.
• Who provided or rented the replacement, whether costs arose and who is claiming them.
• What you would have needed the car for and any specific obstacles to using another vehicle.
• The opposing insurer’s calculation and reasons. Disclose rental costs and loss-of-use claims for the same period separately.