Ref.: 111 C 200/05
Announced on 11.11.2005
COLOGNE DISTRICT COURT
JUDGMENT
In the legal dispute
des *****************************************************,
plaintiff,
Attorney of record: Attorney Brandl, Neusser Str. 182, 50733 Cologne
vs.
die *****************************************************,
Defendant,
Authorized representative:
the Local Court of Cologne, Section 111, at the oral hearing on October 21, 2005 by the judge **** at the Local Court
found to be right:
The defendant is ordered to return the vehicle registration document for the car ***, vehicle identification no: ***, key no. *** to be handed over. The defendant is ordered to pay the costs. The judgment is provisionally enforceable. The defendant may avert the enforcement directed against it by providing security amounting to 110% of the amount enforceable on the basis of the judgment, unless the plaintiff provides security in the same amount prior to enforcement.
Facts :
The plaintiff demands that the defendant hand over a vehicle registration document for a car ***.
The parties have been divorced since November 14, 2002. During the period of cohabitation, the car in dispute *** was purchased in November 1998. The previous car, an Opel Omega, was traded in. Credit financing was arranged with Renault Bank for a loan amount of DM 10,000. Both spouses were loan debtors. The defendant was entered in the vehicle registration document as the owner. After the loan installments had been paid off, Renault Bank sent the vehicle registration document to the defendant in January 2000. In the course of the separation in 2000, the plaintiff took the car *** with him.
He claims that he purchased the car *** alone and therefore became the sole owner. The defendant was not present at the purchase of the vehicle. He had given his previous car (Opel Omega) in payment and made a down payment of DM 5000 in cash. The installments for the loan from Renaultbank were paid jointly. He further claims that he alone used the vehicle and that the defendant was not in possession of a driving license.
He submits the application,
The defendant to hand over the vehicle registration document for the car ***, vehicle identification no: ***, key no. ***.
The defendant requests,
dismiss the action.
She argues that she became the sole owner of the car ***, namely by paying a deposit for the Opel Omega car, which was her sole property, and by financing the loan. She had paid the loan installments solely from her own money. When he moved out, the plaintiff simply took the car. In response to her inquiries, he had always denied being in possession of the vehicle.
For further details, reference is made to the written submissions exchanged between the parties and the documents submitted for the file.
Reasons for the decision:
The admissible action is well-founded.
The plaintiff can demand that the defendant hand over the vehicle registration certificate in accordance with § 985 BGB.
It must be assumed that the plaintiff is the sole owner of the vehicle. The presumption of Section 1006 (1) BGB speaks in his favor. The presumption of this provision is that the direct owner, i.e. here indisputably the plaintiff, established his own ownership when acquiring possession and thereby acquired unconditional ownership and also retained it during the period of ownership. The presumption of ownership also applies to spouses (see OLG Oldenburg, NJW- RR 1991, 963). A restriction of the presumption to the effect that only co-ownership has been established because the plaintiff wanted to acquire the vehicle for himself and on behalf of the defendant for co-ownership does not exist after a further detailed examination of the legal situation. This can already be ruled out due to the defendant’s contradictory factual submission in this respect. Both parties here claim to have acquired the vehicle as sole owners.
Due to the presumption of § 1006 Para. 1 BGB, the defendant is now obliged to rebut this, i.e. it has the burden of presentation and proof that the plaintiff did not acquire sole ownership of the vehicle. However, there is no substantiated submission in this regard. No suitable evidence has been offered either. The defendant’s submission in its statement of defense dated May 30, 2005 (p. 12 et seq.) is not sufficient in this respect.
Insofar as the defendant asserts that it alone financed the vehicle and that the car given in payment was in its sole ownership, this is not sufficient to rebut the presumption of ownership under Section 1006 BGB in favor of the direct owner. This (disputed) submission only relates to the contractual side of the legal transaction and therefore has no reference to and no effect on the disposal transaction, i.e. the transfer of ownership within the meaning of Section 929 et seq. BGB. The entry of the plaintiff as the owner in the vehicle registration document also only represents an indication in this respect, which in itself is not suitable to rebut the presumption of ownership (see BGHZ 156, 310).
Ownership is acquired by agreement and transfer (Section 929 BGB). According to the facts described by the plaintiff, he received sole ownership from the seller at the time of purchase in November 1998. The plaintiff has presented evidence as to how the purchase of the car *** came about. According to this, he visited the seller alone with the witness *** and in this respect purchased the car ***. The defendant did not counter this substantiated submission in any way. Due to the presumption of ownership under Section 1006, a simple denial on the part of the defendant is not sufficient. The presumption of § 1006 para. 1 BGB therefore remains. The defendant is obliged to hand over the vehicle registration document to the plaintiff.
The procedural ancillary rulings follow from §§ 91 Para. 1 1st half-sentence, 708 No. 11, 711 ZPO.
Value in dispute: € 700.
Judge at the local court