The article presents the decision of the German Federal Supreme Court (Bundesgerichtshof, shortly BGH) of 11.11.2015 – IV ZR 426/14. In this decision the BGH decided for the first time whether it is permissible that car owner demand the payment of fictive repair cost on the basis of a motor own damage insurance. The BGH considers that this is, similar to the situation in tort, is justified in general. However the BGH makes differences related to the burden of explanation and rules. Namely in a dispute based on an insurance contract, the owner of a damaged car has to satisfy higher demands then one who demands the same based on tort.The mentioned decision was welcomed in the German legal literature. However there are those who point out the decision is mainly based on the wording of article 2.7.1 point of the general conditions for the car insurance (Allgemeinen Bedingungen für die Kraftfahrzeugversicherung (AKB) 2008). Therefore the the insurance companies could limit the freedom of the disposition which is given by this decision to their clients, by using clauses which limit fictive repair costs to average repair costs. Such clauses met the strong requirements which exist for general contract clauses.
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