Maintenance guide was considered part of the leasing agreement by reference
Maintenance guide was considered part of the leasing agreement by reference
A lessor and lessee dispute over whether the contents of an appendix and care guide are to be seen as contractual content. The court finds that the care guide is to be regarded as part of the contract by reference, even though the reference has been somewhat unclear. However, due to a misspelling in the annex, it is not to be seen as part of the lease according to the court.
Volkswagen Finans (Volkswagen) leases a car to Brorab AB (Brorab). When the car is returned, the tread depth is less than three millimetres, which according to Volkswagen constitutes abnormal wear and tear for which Brorab are liable for compensation. Volkswagen’s assessment is partly based on the annex “information on the contractual condition of the object”, which is part of the contract. The Annex states that the tread depth shall not be less than four millimetres upon return of the car. It is also stated that a care guide available on its own website is to be seen as a contractual condition following a reference in the lease agreement. Also in the care guide it is stipulated that the pattern depth should not be less than four millimeters. However, Brorab considers that the Annex is only applicable in the case of early return. Since they returned the car at the end of the contract, they therefore consider that the annex does not lead to a replacement obligation even though the tread depth was less than three millimetres when the car was returned. Furthermore, it is considered that the reference given to the care guide in the contract is so vague that the guide is not to be considered as contractual content.When Brorab denies the obligation to pay, Volkswagen files an action in the District Court (TR) with a claim for compensation in order to restore the car to contractual condition.
The TR begins by examining whether the annex applies to the situation or if it only applies in the case of early return. The Annex states, among other things, that “this constitutes a definition of what is considered, under paragraph 10.3 of the Lease Agreement, to mean that the object is considered to be returned in the contractual condition”. Since paragraph 10.3 governs early return, the Court considers that the wording in the Annex indicates that it does not apply when the car is returned after the expiry of the contract period. However, according to Volkswagen, the reference is due to a printing error, since it is actually point 11.1 of the contract that is referred to. Furthermore, Volkswagen considers that it is clear from the context that it is paragraph 11.1 to which the Annex actually refers, since the wording “the object in contractual condition” appears in both letters. The Court considers that it gives some support to Volkswagen’s interpretation but that it is not sufficient to apply the Annex contrary to what is expressly stated. Therefore, the Annex is not to be regarded as applicable to the parties’ agreements under TR.
The court therefore proceeds to assess whether the care guide can be seen as part of the contract. The agreement states that what is meant by abnormal wear can be read on the website. TR argues that content may be added to contracts by reference if it is made sufficiently clear; the question is therefore whether the requirement of clarity is met. What the court believes is contrary to this being the case is that the reference in the contract is to the website in general rather than the care guide specifically. On the other hand, the court considers that it is clearly stated what type of content is being addressed — the fact that there was an act on the website regulating just abnormal wear and tear should therefore not have been a surprise to Brorab. Moreover, in the case of two traders, rather than one trader and one consumer, the Court submits that the requirement for clarity in the reference should not be set equally high. The district court’s overall assessment is therefore that the management guide should be accepted as contractual content through the reference. Therefore, the tread depth of the tyres being less than three millimetres is seen as abnormal wear, which means that Volkswagen wins the case and that Brorab are liable for compensation. Brorab then appealed to the Court of Appeal (HoVR), which adjudicates the case.However, HoVR shares TR’s assessment in all material respects why the outcome will be the same.