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Discussion in 'Vintage (thru 365 GTC4)' started by 500tr, Jul 22, 2017.
Car n°121 in post #63 is not #0636MDTR.
Still no answer to who stole the car? Very interesting thread though.
Must be #0614MDTR
Yes, at Watkins-Glen in 1956.
As mentioned before, the German Civil Court 'Oberlandesgericht Karlsruhe' has legally ruled that the insurance company has not acquired ownership of the vehicle because its own specific terms and conditions are not effective for the contract with Schaefer. So this gentleman could not acquire ownership of the vehicle from the insurance company.
The court also ruled that this gentleman was not in good faith when he took over the vehicle in Italy, as he knew that it was the vehicle VIN 0636 that was stolen in 1998 in Italy.
Facing that this gentleman has changed his strategy. He has made public that he has taken over the vehicle from Sig. B. F.. He claims that Sig. F. aquired and sold it in good faith that it is the vehicle with the VIN 0614 or 0640. The fact that this gentleman has done so even though he is committed to the confidentiallity about all circumstances of the deal shows in what great distress he must be.
In other contexts regarding Ferrari classic cars Sig. F. is well known to many members of FerrariChat and he is considered to be a great expert. For sure Sig. F. knew which vehicle he has offered this gentleman and others. Whether he will accept an invitation of a German civil court and testify as a witness may be doubted.
To be continued …
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Hello Bert, I just found out that this picture not only shows my favorite car, but myself in the background as well
On April 7, 2020, another German civil court (Oberlandesgericht Frankfurt am Main, file number 29 U 206/18) likewise ruled that the insurance company AXA Versicherung AG had not acquired property of the Ferrari Testarossa # 0636MDTR because its own terms and conditions are ineffective in this case. The appeal against this judgment is not permitted.
The insurance company denied knowing that it had no property when it entered into the contract with this gentleman. Considering all circumstances, this does not seem very convincing. Another German civil court (Oberlandesgericht Karlsruhe, file number 12 U / 16) made the same decision in a comparable case previously, this verdict was publicly released six months before the deal.
This is now the third ruling by a German civil court that AXA was unable to provide property. For that reason, this gentleman could not acquire property from the insurance company. So it seems that he has no rights to the vehicle and probably therefore is illegally in its possession. It will be interesting to see if he is now ready to hand over the vehicle to the real owner
The story continues ...
Yesterday the insurance company AXA conceded that it had no ownership of the vehicle.
This gentleman will eventually realize that he has to hand over the vehicle to the owner because he has no right on it...
Mr. Michael Stehle has no legal position to hold Ferrari Testa Rossa s/n 0636MDTR in his possession.
Is this the right file numer you have given - Oberlandesgericht Frankfurt am Main, file number 29 U 206/18?
Has the judgement been published and if yes, where?
Is this the right file number you have given - Oberlandesgericht Karlsruhe, file number 12 U / 16?
Has the judgement been published and if yes, where?
Would love to read it.
Thanks in advance.
You can find OLG Karlsruhe 12 U 90/16 here (German language): https://openjur.de/u/898030.html
Oberlandesgericht Frankfurt am Main 29 U 206/18 isn't published, as far as I know.
I used google translate, I'll paste the translation results from Google here
In the context of a special classic car insurance, the clause according to which the vehicle becomes the property of the insurer in the event of theft, if it is not brought back into service within a month, inappropriately affects the policyholder
1. On the plaintiff's appeal, the judgment of the Mannheim Regional Court of April 13, 2016 - 8 O 213/15 - is overturned in the cost item and otherwise modified as follows:
The defendant is ordered to hand over to the plaintiff the original of the vehicle registration number TR ..., relating to the vehicle type Maserati GT 3500, vehicle ID: ..., and the two associated vehicle keys.
Moreover, the application is dismissed.
2. The plaintiff's further appeal is rejected.
3. The plaintiff bears 61% and the defendant 39% of the costs of the litigation.
4. The judgment is provisionally enforceable. The defendant can avoid the enforcement of the plaintiff by providing security or by depositing an amount of EUR 45,000 if the plaintiff has not previously provided the appropriate amount of security. The plaintiff can avoid the enforcement of the defendant because of the costs of security or deposit in the amount of 110% of the enforceable amount if the defendant does not previously provide security of 110% of the amount to be enforced.
5. The appeal against this judgment is not permitted.
The plaintiff requests further insurance benefits from the defendant after the theft of a classic car.
The plaintiff had insured his classic car Maserati against theft from the defendant as part of a special classic car insurance since 01.01.2005. The original insurance contract was based on an offer from the General Agency K working for the defendant (Annex A2); among other things it says:
"The replacement value is insured !!!! This is higher than the market value. "
The general conditions for classic car insurance on which the insurance relationship is based (Annex A9; hereinafter: AVB) states:
"§ 4 compensation
1. The insurer will compensate for damage up to the replacement value of the vehicle ... on the day of the damage, unless otherwise specified in the following paragraphs. Replacement value is the purchase price that the policyholder has to spend to purchase an equivalent used vehicle ... If a replacement value cannot be determined for the insured vehicle, the insurance value agreed in the contract is regarded as a fixed estimate. ...
3. In all cases, the benefit limit is the insurance value agreed in the insurance contract ...
8. If stolen items are brought back on the spot within one month of receipt of the claim, the policyholder is obliged to take them back. After this period, they become the property of the insurer. ... "
In the following years, the vehicle value specified in the contract was significantly increased based on new appraisals. Most recently, the sum insured in the insurance policy dated 04.09.2014 (Appendix BLD 10) was set at EUR 360,000.
On 04.03.2015 the plaintiff's vehicle was stolen by unknown persons. The defendant paid the sum insured, including an agreed precautionary premium of 20% and less a deductible, totaling EUR 429,500, to the plaintiff after he had sent her vehicle letter and key.
The plaintiff has claimed that the current replacement value is insured. This results from the offer of the general agency. The different insurance conditions are irrelevant and also ineffective. The actual replacement value is at least EUR 800,000. From the difference to the amount paid out, he claimed a partial amount of EUR 50,000 plus interest and pre-judicial reminder costs. In the alternative, he recently requested the delivery of vehicle registration documents and keys. A transfer of ownership did not take place. The defendant is also not entitled to transfer the vehicle. The insurance conditions are also ineffective in this regard.
The defendant applied to dismiss the action. It took the view that its liability was effectively limited to the insurance value as the upper limit. The plaintiff was expressly informed of this both before the original contract was concluded in 2004 and before the new contract was concluded in 2014. With regard to the vehicle registration document and keys, she has invoked a right of retention.
The district court dismissed the action as a whole. The defendant's liability was effectively limited to the sum insured in the insurance conditions. No different individual agreement can be derived from the offer of the general agency. The auxiliary request is also unfounded. The regulation on the transfer of ownership in § 4 (8) AVB is effective. As a result, the plaintiff was obliged to transfer ownership and therefore could not, in good faith, demand the vehicle letter and keys.
The plaintiff's appeal is directed against this, with which he fully pursues his first-instance motions. He believes that the repeated adjustment of the contractual sum insured does not indicate that he himself assumed that the insurance cover would be limited accordingly. Rather, this was done at the instigation of the general agency. He did not receive circulars from the defendants, which in 2013 advised in writing to adjust the insured amount and pointed out the risk of underinsurance.
The applicant claims that
condemning the defendant , amending the judgment of the Mannheim Regional Court of April 13, 2016 - 8 O 213/15 ,
a) to pay the plaintiff EUR 50,000 plus interest amounting to 5 percentage points above the base rate since April 23, 2015;
hand over to the plaintiff the original of the vehicle registration document No. TR ..., relating to the vehicle type Maserati GT 3500, vehicle ID: ..., and the two associated vehicle keys;
b) to pay pre-judicial reminder costs of EUR 1,822.96.
The defendant defends the contested decision and claims that
dismiss the appeal.
Unless otherwise stated in this judgment, for further details of the facts, reference is made to the factual findings of the contested decision, the parties' written pleadings and the annexes submitted by them. The Senate heard the plaintiff in person and raised evidence by questioning witnesses; for the results, reference is made to the protocol from September 1, 2016 (AS II 105). The investigation files of the Cologne public prosecutor's office - 390 UJs 1474/15 - were available and were the subject of the hearing. II.
The admissible appeal is justified only with regard to the auxiliary request, but unfounded with regard to the main request.
The regional court rightly denied the claimant's claim to further insurance benefits. The defendant's insurance contract liability is limited to the sum insured of EUR 360,000 (plus the agreed pension surcharge and less the deductible) stated in the insurance policy dated 04.09.2014 (Annex BLD 10) and does not extend to a possibly higher current replacement value, § 1 para 1 p. 1 VVG, § 4 paragraphs 1 and 3 AVB.
a) It may be questioned whether - as the plaintiff believes - the original insurance contract in 2004 was initially concluded without restriction at replacement value due to the offer letter from the defendant's general agency or whether the plaintiff had already been expressly informed about the limitation by witness K at that time, as the witness claims to have been doing "with every customer" since 1993.
b) In 2014, the parties established a new insurance relationship that replaced the previous one. On the occasion of the last valuation report obtained, the plaintiff applied for a new insurance on 04.08.2014 (Appendix A5). On page 4 of the application, under “Tariff change”, it is expressly stated that the previous contract “expires” upon acceptance of the new one. According to the application, the defendant issued the insurance policy dated 04.09.2014 (Annex BLD 10), which indicated 02.08.2014 as the start of the insurance and confirmed on p. 1 under "Replacement contract" that the previous insurance policy had expired.
In any case, when this new contract was concluded in 2014, both parties clearly assumed that the amount of the insurance benefit would remain limited to the sum insured and that a replacement value beyond that would not be insured.
aa) This understanding of the contract already results from the plaintiff's own letter dated 26.08.2008 (Appendix BLD5), with which he explicitly asked for an adjustment of the insurance sum based on an updated valuation report. Since this inevitably entailed a corresponding increase in the premiums to be paid, this could only make sense for the plaintiff if he assumed that the insurance benefit was limited to the amount stipulated in the contract and that an adjustment to the contract would be necessary if the value of the classic car increased . If, on the other hand, the plaintiff were of the opinion that the current replacement value was always insured, there would have been no need to adjust the insurance cover or to pay higher premiums.
bb) The same applies to the reply card signed by the plaintiff - undisputedly - from August 29, 2013 (Appendix BLD 8). The plaintiff ticked there: "Yes, I would like to adjust the insurance sum for my classic car by 10%. The insurance premium increases accordingly. ”A lump-sum increase was evidently only possible with an insurance benefit that was contractually limited to a fixed sum. Furthermore, it does not matter that the decisive factor is that the plaintiff must also have received and taken note of the defendant's previous letter from July 2013 (Appendix BLD7), in which the defendant had expressly warned of possible underinsurance . Because in view of the credible depictions of the witness K, the plaintiff can only have received the reply card signed by him in this way.
cc) These mutual declarations unequivocally express an understanding of the contract, according to which only the respective contractual insurance sum is to be covered and underinsurance arises when the replacement value increases. It does not matter whether the previous insurance relationship - as the plaintiff claims - actually existed at the current replacement value and whether the mutual understanding of the contract was possibly incorrect at the time. In any case, this understanding was recognizable to the plaintiff as the basis for the new contract from 2014 and is therefore decisive for its interpretation.
dd) The plaintiff does not claim that the defendant's general agency once again made a misleading offer for insurance at the “replacement value” (as was the case in 2004, Appendix A2) when the contract was concluded in 2014.
Rather, the plaintiff initially assumed the restriction itself. As part of the theft report, he explicitly stated to the police that the classic car had an estimated value of EUR 700,000, "but he only insured the vehicle for EUR 360,000" (investigation files by the Cologne public prosecutor's office - 390 UJs 1474/15, p. 2 u.).
No other interpretation of the contract results from the Internet advertising of the defendant, which (earlier) advertised their classic car insurance with the slogan: "In the spirit of your passion: insurance at replacement value" (Appendix A1). On the one hand, it is a matter of general advertising, which does not necessarily allow conclusions to be drawn about the scope of the insurance benefits agreed in each individual case. Above all, the plaintiff does not claim that he concluded the new contract in 2014 under the influence of this advertising or why it should otherwise be decisive for the interpretation of the contract.
ee) After all, at any rate it was clearly clear between the parties when the new contract was concluded in 2014 that the amount of the insurance benefit is limited to the sum insured. The individual declarations to be used for the interpretation were thus in accordance with Section 4 Paragraphs 1 and 3 of the General Terms and Conditions, and (unlike in the decision of BGH NJW 2013, 2745 cited by the plaintiff ) there was no deviation.
d) The limitation of the insurance benefits in § 4 paragraphs 1 and 3 AVB is also legally acceptable under terms and conditions.
aa) It is neither surprising (section 305c (1) BGB) nor its lack of transparency in its specific formulation (section 307 (1) sentence 2 in conjunction with section 3 sentence 2 BGB). To avoid repetition, the Senate refers to the reasoning of the regional court, to which it joins. It is roughly in §§ 75 f that the insurance benefit in the damage insurance can remain below the value of the insured object . VVG expressly provided. The contractually agreed sum insured generally marks the extreme limit of compensation. This was legally ordered in § 50 VVG aF and continues to apply as a rule of interpretation after its repeal (Prölss / Martin / Armbrüster, VVG, 29th edition, before § 74 marg. 14).
bb) An ineffectiveness due to inadequate disadvantage according to § 307 Abs. 1 S. 1 BGB is also excluded. Because according to § 307 Paragraph 3 Clause 1 of the German Civil Code, service descriptions that directly determine the type and scope of the main service are not subject to a content check; the latter are only subject to clauses that restrict, change, design or hollow out the main service (BGH NJW 2014, 1658 ; see also BGH VersR 2006, 1066 ; Staudinger / Coester, BGB, 2013, § 307 marginal no.332). The clauses affected here in § 4 Paragraphs 1 and 3 AVB directly determine the type and scope of the insurance benefit and thus the main contractual benefit.
Contrary to the plaintiff's view, the ancillary regulation on the transfer of ownership in Section 4 (8) AVB does not change this. This secondary regulation must be seen in connection with the main contractual service; however, this only affects the content control of the secondary regulation (see 2. below).
e) Since the plaintiff cannot claim any further insurance benefits, he is also not entitled to the pre-judicial reminder costs.
However, the plaintiff can request the delivery of the vehicle registration document and keys, as claimed in the auxiliary request, § 985 BGB. The defendant has no right of retention.
a) It is not disputed between the parties that the plaintiff has not yet transferred the vehicle to the defendant and thus - in accordance with § 952 BGB - also remained the owner of the vehicle registration document and the key. Admittedly, the regulation in Section 4 (8) sentence 2 of the General Terms and Conditions, according to which stolen items that - as here - do not return to the injured party within a month, become the property of the defendant, must be interpreted as an anticipated conditional assignment (see Stiefel / Maier / Meinecke , AKB, A.2.10 para. 7; Prölss / Martin / Knappmann, VVG, 29th edition, AKB 2008 A.2.6 ff. Para. 35). It is not disputed that the plaintiff revoked this conditional assignment before the condition began.
According to this, if the regulation in section 4 (8) sentence 2 of the General Terms and Conditions were effective, the defendant would be entitled to a transfer of ownership with regard to the vehicle and thus a right of retention to the vehicle letter and keys, section 273 of the German Civil Code.
b) However, the clause is ineffective. Within the framework of the special classic car insurance presented here, a pre-formulated contractual condition, according to which the classic car becomes the property of the insurer in the event of theft, if it is not brought back within one month, the contractual partner inappropriately, § 307 BGB; it is also surprising and therefore cannot become part of the contract, § 305c Para. 1 BGB.
aa) In general motor vehicle insurance, however, such a transfer clause is common (cf. (see BGH NJW 1982, 444, 445; Stiefel / Maier / Meinecke and Prölss / Martin / Knappmann, each as above.). Because a normal motor vehicle is primarily a commodity, so that the policyholder is adequately protected against economic damage by reimbursing the replacement value (cf. A.126.96.36.199, A.188.8.131.52 AKB 2015). In particular, in the case of a normal motor vehicle, there is in principle no constellation that the transfer of ownership in the event of the stolen vehicle being found again later enriches the insurer because ordinary motor vehicles tend to lose value with increasing age.
The monthly period is also tailored to the interests of ordinary motor vehicles (cf.GGH NJW 1982, 444 , 445): on the one hand, the interest of the insurer is taken into account, which despite theft cannot be made if it is quickly found and the recovered one, which is "undesirable for him" "The object of the insurance does not need to be taken over. On the other hand, with "normal" motor vehicle insurance, the policyholder is interested in the shortest possible term because he only receives the insurance benefit after the deadline and can get a replacement vehicle from it (cf. A.184.108.40.206, A.2.7.3 AKB 2015).
bb) The situation with this special classic car insurance differs fundamentally from this.
Because there is the peculiarity that classic cars typically do not lose value due to the passage of time, but on the contrary, rather experience an increase in value. According to its letter to adjust the insurance value, the defendant assumes that "many classic cars ... have increased in value in recent years" (Appendix BLD6), namely "on average" by almost 10% within one year (Appendix BLD7). In the event of a delayed retrieval, the transfer of ownership will therefore regularly lead to a considerable economic advantage for the insurance at the expense of the policyholder. This applies all the more as the compensation is limited to the sum insured, which at the time of the theft - i.e. without any further increase in value due to aging - can be significantly below the true value of the classic car. Such a shift in the increase in value to the insurer, for which there is no justifiable reason, places the policyholder at an unreasonable disadvantage, §307 BGB (cf. on the inappropriateness of an enrichment of the insurer in the context of general motor insurance with reduced insurance benefits according to A.220.127.116.11 AKB 2015 also Stiefel / Maier / Meinecke, AKB, A.2.10 marginal 8).
In addition, the focus in classic cars is less on the use value than on the owner's particular relationship to the insured object, such as a specific model. Appropriate replacement procurement is not easily possible, especially for rare models. In contrast to ordinary motor vehicles, the policyholder will therefore regularly have a special interest in remaining the owner of the classic car even if it is only found a long time after the theft; on the other hand, it will not be a matter of regular concern for him to get any replacement vehicle as quickly as possible in order to restore his own mobility. Under these circumstances, the average policyholder does not and must not expect a short-term and final transfer of ownership to the insurer.305c para. 1 BGB.
cc) In the context of theft insurance, classic cars appear more valuable than anything else than ordinary motor vehicles. In general household insurance, there is usually no automatic transfer of ownership for valuables, but a choice of the policyholder between insurance benefits and items brought back (see A. § 18 Paragraphs 3 and 6 VHB 2010; for the legal situation without assignment clause, see Martin, property insurance law, 3. Ed., ZI 17 ff.). Only with such a right to choose can the protection of the policyholder be protected from being overreacted by a forced transfer of ownership, thus avoiding undue disadvantage and unacceptable surprise.
Therefore, in general motor insurance, such a choice of the policyholder - directed to transfer back against reimbursement of the insurance benefit - is also taken for granted, even without express regulation, in order to rule out any unlawful enrichment of the insurer if necessary (so Bruck / Möller / Johannsen, VVG , 8th ed. 1994, Vol. VI: Motor insurance, note J 137). However, the local regulation in § 4 (8) AVB, which expressly provides for a final transfer of ownership, does not give any reason for such unwritten voting rights. Rather, the acceptance of such an unwritten option would result in a - legally inadmissible - validity-preserving reduction of the ineffective assignment clause.
c) Since the assignment clause has not been effectively agreed, the defendant has no right of retention based thereon. The Senate does not fail to recognize the defendant's interest in securing the event that it is later found. If the classic car comes back to the plaintiff, the defendant can, if necessary, claim the insurance benefit in accordance with Section 812 (1) sentence 2 old. 1 BGB (cf. Martin, property insurance law, 3rd edition, ZI 17 ff.). However, this claim for conditionality is suspensive and therefore cannot currently justify any right of retention, since § 273 BGB requires a counterclaim that is due (cf. Palandt / Grüneberg, BGB, 75th edition, § 273 paragraph 7). This also applies to the right of retention asserted by the defendant according to §273 para. 2 BGB; this is also not relevant here because the applicant's uses of the keys and papers to be issued are not apparent. For the latter reason, a right of retention - regardless of the due date of the counterclaim - due to the use made according to § 1000 BGB is excluded.
Finally, the ineffective assignment clause cannot be reinterpreted as a right of retention. Because such a "validity-preserving" reinterpretation of an ineffective clause is just as inadmissible as its validity-reducing reduction.
The decision on costs follows from section 92 (2) (1) ZPO. The decision on the provisional enforceability is based on §§ 708 No. 10, 711 ZPO.
There are no reasons for the approval of the revision (Section 543 (2) ZPO). With regard to the main application, the decision is based on a contract interpretation in individual cases. With regard to the auxiliary request, the ineffectiveness under general terms and conditions is affected in a special constellation (classic car insurance); divergent jurisdictional jurisprudence or literature is not apparent.
google translator in this case is not the best. my home language is german and I have read this long text in german an dthen also in your english translation. even there in german it is a little confusing. this is "jurists german" and to translate such a text with google is more confusing then. unfortunately I not found a free translation system for such text in the internet. only some specialized translation offices.
Agree with all of that. Besides that I understand this case was for some Maserati and does not really have to do with 0636 MDTR (the stolen 500 TR Spider), except some legal similarities.
You are right. But this case and what was decided under 2nd was the legal basis for winning our case regarding 0636 MDTR.
Mr. S. has now given up hope that he could acquire property from the insurance company. He now claims that the previous owner or his or her previous owner or his or her previous owner or someone else in wich country ever acquired property in good faith, so Schaefer would have lost property. New story
It remains exciting and interesting.
Yes, you are right. It was the base of the theft of a Maserati 350GT Spyder by Vignale from Mr. Jürgen B. in Germany. It was a complex legal issue reg. insurance caverage and compensation that was finally solved by the court.
solved by the court?
the court has given a verdict - nothing else. an other court would have done different?
The verdict of the court solved the issue. The owner of the Maserati was compensated by the insurance company.
Was this car at one time from the Alaskan racing team-The guy who had a Moose head in the suderia shield instead of the horse?
If so, I was involved with this car 40-45 years ago and have some pretty interesting comments if THIS is the SAME car?>
Well well well....turns out this IS" the same car"...
So let me get this straight: a vintage racing car was "stolen" 25 years ago, cut up for parts, and mysteriously resurfaces in Germany-with a relatively complete assortment of parts?
Forget the legalese diatribes-I'm focused on the CAR...I ask, because I was THERE in the 1970s, when it came off the truck from Alaska....
This is going to make for an interesting commentary... I need to get some counsel before I start to comment on what i saw/and know as FACT...
How soon before the "lost" 250 TR team car(dry sumped/IRS car) that was last seen in Australia 40-50 years ago, magically re-appears on the continent in a container???? This "barn find stuff" defies common sense, based on what I saw...If I can only find my/the box of original pictures....damn it, age is a real problem these days....BUT, I KNOW what I saw, I KNOW the crankcases I repaired....Marcel, pls PM when you have a minute...
Ralph R. Stefano of Anchorage, Alaska. He got 0636 MDTR 1964 from Chinetti. Sold it 1979 via Russ Graham and Charlie Farnsworth (both of Portland/OR) to Bob Taylor in Burligame/CA. Included in the sale of 0636 MDTR was also 0634 MDTR and engine 0496 AM missing its internals.
Here's the F.A.R.T. letterhead.
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I have it on authority that whatever the car in Australia was, it wasn't #0782TR and besides supposed owner John Blanden wrote a book Historic Racing cars of Australia without mentioning it and the cars he did sell were publicly sold after his passing in 2004. It was probably another fake. Totally agree with your point and this car is probably just the latest in a long line of fishy Ferraris that will be debated for years to come.