Last month the Court of The Hague issued a ruling in a case brought by a car rental company against one of its tenants.The tenant's great-nephew had taken his place behind the wheel of the rental car and, in doing so, caused a serious accident. The landlord held both the tenant and the great-nephew liable for the damage to the rented car. Does a tenant in this case have recourse to force majeure, or must he bear the full damage to the car — caused by his great-nephew —?
Relevant facts and circumstances
The car rental company has rented a Ford passenger car to the lessee. The agreement includes a deductible of EUR 300 per damage event. It is also stated in the agreement:The rates include insurance. The BOVAG general rental terms and conditions apply to the agreement.
The renter was not allowed, under these terms, to lend the car out or make it available to a third party. If he were to do this without consulting the landlord, the maximum deductible of EUR 300 does not apply and it must be settled in full – according to the terms.
Under unclear circumstances, the renter's nephew nevertheless crawled behind the wheel of the Ford, without him having a valid driver's license. He was also not listed on the rental contract as a (co-)tenant or driver. The great-nephew has thereby caused a serious accident, resulting in extensive damage.
The landlord has filed a claim with the court seeking to have the tenant and his cousin ordered to pay damages to the Ford in the amount of EUR 16,769.64, plus statutory interest.
appeal
The court ruled — in short — that it has not been established that the tenant is entitled to rely on force majeure, and that the tenant acted in breach of the terms by not returning the car in undamaged condition after the rental period. The court sentenced the tenant and his cousin to pay the claimed damages, each of them jointly and severally liable.
The tenant and his great-nephew have appealed and contend (inter alia) that it had not been shown sufficiently that the tenant had made the Ford available to the great-nephew. The tenant claims that the great-nephew has taken the key without his permission and that nothing can be blamed on him. The tenant thereby invokes force majeure.
The Court does not follow the tenant's argument and notes in that regard that the prohibition on allowing someone other than the tenant to drive the car is not limited to the situation in which the tenant makes the car available to a third party, but also applies to any driver who is not identified as such and/or as the tenant in the agreement.
The court also notes with regard to the claim of force majeure that the burden of proof thereof lies with the tenant. The tenant has, with regard to this burden of proof, submitted his own party statement, the ex-partner's statement, and the statements of his two daughters. The Court held that this evidence is not sufficiently strong and that this evidence does not contain such essential points as to make the tenant's statement – namely that the cousin took the keys to the Ford and the Ford without his consent and knowledge – sufficiently credible. The court ruled that the tenant did not succeed in his burden of proof.
In short, as the tenant is not entitled to invoke force majeure, the general rental terms provide that the tenant's liability is not limited to the EUR 300 deductible agreed in the contract, but that he is fully liable for the landlord's damages.
Also the tenant's argument that it was advertised that the agreement was 'including insurance' does not, according to the Court, mean that the landlord was required to be insured for more than WA. The tenant, in connection with the fact that no all-risk insurance had been taken out by the landlord, therefore makes no claim of fault. Finally, the comparison with the situation in which there is theft and in which the tenant is in principle only liable for the deductible is disregarded by the Court.
Concluding
This ruling makes clear that you must be careful whom you let drive a rental car that you have rented during your vacation, since a renter does not quickly have recourse to force majeure if the key to the rental car is taken. This is only different if there is clear evidence of theft. Make sure that when you rent a car, everyone who will be driving is also listed in the rental agreement. Last but not least, make sure that you handle your rental car key with care in all cases, otherwise the rental of a rental car can become an expensive affair.
