Two ways of making good the time off the road. In May 2026 the Federal Court of Justice noticeably tightened the requirements for rental car costs.
In short: If your vehicle is off the road after a not-at-fault accident, you can choose between loss-of-use compensation as a daily flat rate and a rental car. You cannot have both for the same period. For rental cars, a stricter standard has applied since the Federal Court of Justice's judgment of 19 May 2026 – VI ZR 67/25, and it works against the injured party.
Loss-of-use compensation is a sum of money paid because the accident leaves you unable to use your vehicle even though you wanted to use it. It is paid per day off the road and expressly does not require you to have incurred any actual costs. The loss of the ability to use the vehicle is itself the damage.
That this is a recoverable financial loss rather than a mere sentimental one was decided by the Grand Senate for Civil Matters of the Federal Court of Justice. The reasoning is that the constant availability of a motor vehicle has an economic value of its own to the keeper, one they have paid for through acquiring and maintaining it. Where that availability falls away, their financial position is worse than before.
Case law: BGH, decision of the Grand Senate for Civil Matters of 9 July 1986 – GSZ 1/86 (BGHZ 98, 212). The temporary loss of the ability to use a motor vehicle is a recoverable financial loss.
The claim requires three things: an intention to use the vehicle, the ability to use it, and that being without it is actually felt. If any one of these is missing there is no compensation, even where liability is otherwise undisputed.
You must actually have used the vehicle, or have wanted to use it, but for the accident. With an everyday vehicle that is driven regularly, the intention to use it is presumed; you do not have to produce a logbook. It is different where the vehicle was deregistered, in storage, or plainly not intended for use during the period in question.
You must have been in a position to drive the vehicle. If you were injured in the accident so badly that you could not have driven in any event, the claim falls away for that time. The loss of the vehicle then has no effect, because you could not have used it even undamaged. Where another licensed person in the household was available who would have used the vehicle, the ability to use it may continue to exist.
Doing without the vehicle must be something you actually feel. Where an equivalent second car was freely available to you, that element is missing. The Federal Court of Justice has applied this line repeatedly: for a motorcycle used as the only vehicle it allowed the claim, whereas for a motorcycle kept alongside an existing car purely for leisure it refused it. It likewise refused the claim for a motorhome kept alongside a car.
Case law: BGH, judgment of 23 January 2018 – VI ZR 57/17 (motorcycle as the only vehicle: claim allowed); BGH, decision of 13 December 2011 – VI ZA 40/11 (motorcycle alongside a car as a leisure vehicle: refused); BGH, judgment of 10 June 2008 – VI ZR 248/07 (motorhome alongside a car: refused).
The daily rate comes from the Sanden/Danner/Küppersbusch table, which is used almost without exception in practice and is recognised by the courts as a basis for assessment under § 287 ZPO (German code of civil procedure). It is continued by Seifert/Kuhn among others, published in the EurotaxSchwacke environment and updated annually.
The table assigns some 38,000 vehicle models to eleven groups from A to L. What governs the classification is the vehicle type, engine and equipment, that is the question of what use value the vehicle has on the market. The higher the group, the higher the daily rate. Across all groups the range runs from about € 23.00 to about € 175.00 per day.
You cannot take a single figure valid for your vehicle from that range. The specific daily rate follows the currently applicable edition of the table and the group it provides for your model; it is set out in the appraiser's report. Freely available overviews on the internet reproduce the individual amounts per group inconsistently, because the original table is protected by copyright and earlier annual editions contained different figures.
Careful: Do not compare a daily rate you found somewhere online with the settlement offer without checking it. The group figures in circulation often come from different annual editions of the table and contradict one another. What binds is the figure from the current edition, as documented in the report.
For older vehicles the figure is reduced. Under the recommendations of the table's authors and the case law, a vehicle more than five years old is placed one group lower, and a vehicle more than ten years old two groups lower. For very old vehicles some courts apply the pure standing costs instead of a further downgrade, that is what merely keeping the vehicle available costs. This practice is not uniform.
You have a choice. Either you hire a replacement vehicle and settle the rental costs actually incurred concretely, or you forgo that and take the abstract daily flat rate. Both for the same period is ruled out, because loss-of-use compensation is precisely what makes good the state of being without a vehicle.
A rental car makes economic sense above all where you depend on a vehicle daily and being without one would otherwise force you into expensive workarounds. If you drive little, the flat rate is often the calmer route: you receive it without receipts, without a dispute over tariffs, and without the risk of being left with part of the rental cost. Where mileage is very low, courts also refer injured parties to taxi fares.
| Criterion | Loss-of-use compensation | Rental car |
|---|---|---|
| Type of settlement | abstract daily flat rate, no proof of cost | concrete, by costs actually incurred, with an invoice |
| Amount | by vehicle group in the Sanden/Danner/Küppersbusch table, overall about € 23.00 to € 175.00 per day | the rental price, capped at the cheaper accessible tariff |
| Susceptibility to dispute | low; disputes usually concern only the group and the duration | high; a dispute over the tariff level and the basis of assessment is the norm |
| Who must prove what | intention and ability to use; with everyday vehicles regularly unproblematic | that no substantially cheaper tariff was accessible – that burden lies with the injured party |
| Typically suits | low driving needs, a short time off the road, an available alternative | daily dependence on a vehicle, business use, long journeys |
| Combination | ruled out for the same period; switching within the time off the road is possible, for example a rental car for the repair week and the flat rate for the waiting time before it | |
There is no fixed mileage threshold above which a rental car is allowed and below which it is refused. Such figures circulate online, but they cannot be traced to any load-bearing decision. What governs remains necessity in the individual case.
In principle only the standard tariff is reimbursed, that is the usual rental price accessible to you on the general market. Alongside it there is the accident replacement tariff, calculated specifically for accident victims and as a rule considerably more expensive. It is reimbursed only exceptionally: where the particular features of the accident situation justify a surcharge in business terms – hiring at night, no ability to pay in advance, no credit card – and where at the same time no substantially cheaper standard tariff was accessible to you.
Disputes arise on two points. First, the surcharge is often considerable, so that the insurer settles only part of the invoice and you remain liable to the rental branch for the rest. Second, it is contested how the standard tariff is to be quantified at all. The courts assess it under § 287 ZPO but draw on competing surveys in doing so: the Schwacke car rental price index, criticised as too high; the Fraunhofer market price index, criticised as too low; and the arithmetic mean of the two, which many courts choose as a compromise. The Federal Court of Justice has expressly left the choice of the basis for assessment to the trial judge and has not committed itself to any list. Which standard applies therefore depends on the court with jurisdiction.
The requirement of economy applies even where you hire a vehicle of a lower class than the damaged one. That clarification is the core of the decision, and it shifts the position noticeably to the disadvantage of the injured party.
Until now the argument frequently ran like this in practice: anyone who voluntarily hires a smaller car than they are entitled to has already kept the loss down and need face no further criticism over the tariff. The Federal Court of Justice rejected that argument. Forgoing your own vehicle class does not replace the examination of economy; it merely shifts its reference point.
Case law: BGH, judgment of 19 May 2026 – VI ZR 67/25. The requirement of economy applies to the hire of a lower-class vehicle as well; only the cheaper accessible tariff is reimbursed, and the burden of pleading and proving that no substantially cheaper tariff was accessible lies with the injured party.
Two consequences matter in practice. First, recoverability is measured against the vehicle actually hired, not against the damaged one. What is examined is therefore what the market would have charged for the small car you hired – not what a vehicle of the class of your damaged car would have cost. If a cheaper tariff was accessible for the vehicle actually hired, only that is reimbursed, even where the rent paid is below the price of the original class.
Second, the burden of pleading and proof lies with you. Taking account of your individual ability to know and to influence matters, you must show and, if it is disputed, prove that no substantially cheaper tariff was accessible to you. That is no formality: anyone who has not kept comparative quotes stands before the court with an assertion and nothing behind it.
Careful: Before hiring, obtain two or three comparative quotes for the class you actually intend to hire, and keep them as a printout or a dated screenshot. Also record why hiring at short notice was necessary. Since the judgment of 19 May 2026, these documents are the decisive part of your evidence.
Whether, and by how much, a deduction is additionally made for expenses you have saved is handled differently by the courts. No generally reliable percentage can be given for this.
What is reimbursed is the period objectively required to put the damage right – not the period that actually elapsed. How long that is differs according to whether the vehicle is repaired or replaced.
What governs is the necessary repair duration plus the time needed to establish the damage and a reasonable period for consideration. The expected repair duration is set out in the appraiser's report, which is therefore also the yardstick the insurer has to be measured against. If the workshop is delayed for reasons you are not responsible for, such as delivery times for parts, the recoverable period is as a rule extended accordingly.
What governs is the replacement period, that is the time usually needed to obtain an equivalent replacement vehicle on the regional market. It too is set out in the report. Added to that is the time until you learn of the total loss, because only the outcome of the appraisal tells you that a repair is not an option.
In both cases your duty to mitigate under § 254 (2) BGB (German civil code) applies. You should set the repair order or the replacement purchase in motion promptly and, if you cannot fund it in advance, tell the insurer so. Time arising solely from your own delay is not compensated.
Across all vehicle groups the range is about € 23.00 to € 175.00 per day off the road. The rate applying to a particular vehicle follows the current edition of the Sanden/Danner/Küppersbusch table and the group it provides. It is set out in the appraiser's report.
As a rule no, where the second car is equivalent and was freely available to you. The element of actually feeling the loss, which the claim requires, is then missing. It may be different where the second vehicle is not equivalent or is constantly needed by another member of the household.
Not for the same period. Both items make good the same loss, so there is a choice rather than a combination. What is possible is switching within the time off the road: the flat rate for the days without a replacement vehicle, rental costs for the days on which you actually hired one.
The standard tariff is the usual, generally accessible rental price and the normal yardstick for reimbursement. The accident replacement tariff is calculated specifically for accident victims and is usually considerably more expensive. It is reimbursed only where a surcharge is justified in business terms by the accident situation and no substantially cheaper tariff was accessible.
By judgment of 19 May 2026 – VI ZR 67/25 the Federal Court of Justice held that the requirement of economy applies to the hire of a lower-class vehicle as well. Only the cheaper accessible tariff for the vehicle actually hired is reimbursed. The burden of pleading and proving that no substantially cheaper tariff was accessible lies with the injured party.
For the time needed to obtain an equivalent replacement vehicle, plus the time until you learn of the total loss. The usual replacement period for the regional market is set out in the appraiser's report. Time arising solely from your own delay is not compensated, because of the duty to mitigate under § 254 (2) BGB.
For the time during which the accident left you unable to drive in any event, as a rule no. The ability to use the vehicle is then missing, because its being off the road had no effect. Where another licensed person was available who would have used the vehicle, the claim may nevertheless exist.
This article reflects the position as at 3 August 2026 and is no substitute for legal advice in an individual case. Written by PKW Gutachter Service GmbH, automotive appraisal firm, Neu Wulmstorf, Germany.
One call will clarify in two minutes which report you need.
