Private parking operator must claim driver in case of contractual penalty

Who is not familiar with the business model – outside business hours, private (mainly discount store) parking spaces are also made available to the public for parking vehicles for a fee.

If no parking ticket is issued, the license plate number of the vehicle is documented and the owner is held liable for the alleged contractual penalty. This often amounts to a multiple of the parking fee to be paid plus various other costs.

Regardless of the question to be assessed in individual cases as to whether the contract was effectively concluded with the driver at all, the Schweinfurt Regional Court issued a clear rejection of this practice in its ruling of February 2, 2018. In particular, there is no prima facie evidence that the owner of a vehicle is regularly also its driver:

However, a typical sequence of events to the effect that the owner of a passenger car is regularly also its driver cannot be assumed on the basis of general life experience. On the contrary, it is often the case that a passenger car is driven by different persons, e.g. within a marriage or a family, or that the passenger car is not regularly used by the owner at all, e.g. because it was only registered in the owner’s name for insurance reasons.

In the present case, the Regional Court of Schweinfurt also did not recognize any right to information for the parking operator to the effect that the owner would have to disclose whether he himself or another person had driven the car:

A possible secondary burden of proof or a right to information to the effect that the plaintiff would have to disclose which other person drove the car or could be considered to have done so is irrelevant in this legal dispute. In these proceedings, it can only be a question of whether the plaintiff was the driver of the vehicle and parked it in the parking lot; which other person may have done this is irrelevant here, since this cannot have created a contractual relationship with the plaintiff.

A secondary burden of proof regarding the fact whether the plaintiff himself parked the car in the parking lot does not exist here. The opposing party of the party with the primary burden of proof generally has a secondary burden of proof if the party with the primary burden of proof has no further knowledge of the relevant circumstances and no possibility of further clarification of the facts, while the opposing party is readily able and can reasonably be expected to provide further information (BGH, judgment of January 8, 2014, I ZR 169/12).

These requirements are not met here; in particular, a corresponding secondary burden of proof cannot be established by applying the case law of the Federal Court of Justice on the proof of copyright infringements through the use of an Internet connection accordingly. Unlike the situation in which one person out of several members of a household took certain actions via an Internet connection, the defendant has sufficient means of knowledge to determine whether the plaintiff parked the passenger car in the parking lot. The defendant must in any case determine which vehicles with which license plate number are parked in the parking lot by means of personnel and/or technical measures, e.g. video surveillance. In the same way, it is then also possible in principle for the defendant to determine who the driver of the vehicle is, at the latest when returning to the vehicle, even if this may involve additional expense for the defendant. Furthermore, it must be taken into account that the defendant here is merely asserting contractual claims based on what it considers to be an agreement with the plaintiff, whereas the claims for copyright infringement are based precisely on an infringement of rights. Whoever asserts a claim arising from a contractual agreement must first of all ensure that he knows with whom this contractual agreement was concluded.

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