Guide · Fictional Settlement, HIS Entry and Prior Damage

With a fictitious settlement, the other party's liability insurer pays the amount the repair would cost according to the report, without you having to submit a workshop invoice. VAT is not included in this amount. This is set out in law: when property is damaged, the compensation only includes sales tax "if and to the extent it was actually incurred" (Section 249 (2) sentence 2 of the German Civil Code, BGB).

This mainly has two consequences. First: there's no record in the file showing whether or how the vehicle was repaired. Second: items that require an actual repair, such as loss of use for the repair days, can only be claimed once that repair has been proven.

The Information and Notification System of the German insurance industry (HIS) is a shared database used by insurers across Germany. It's currently run by Besurance HIS GmbH in Wiesbaden, previously known as informa HIS GmbH. Many settlement letters still refer to the old name.

According to the operator's data protection notice, information about increased risks or irregularities is stored. In their own words: "For vehicles, data may be stored on, for example, total losses, notional (fiktive) settlements, or irregularities from a previous claim report." Vehicle identification data and personal details are reported. When an insurer makes a report depends on reporting criteria set by the insurance industry, which aren't made public; the report is made without your consent, based on a balancing of interests (Art. 6(1)(f) GDPR). You'll usually be informed about a report in the settlement letter.

The operator itself doesn't decide anything. It simply provides information to insurers whenever an insurance application is made for the vehicle, or a new claim is reported. So a HIS entry doesn't mean a later claim will be rejected. It means it will be looked at more closely.

Not automatically. You're entitled to a correction if an entry is incorrect. Whether a proven repair entitles you to have the entry deleted is something courts see differently — even within the same court.

In 2023, the Munich Local Court ordered an insurer to have an HIS entry deleted that was recorded under the reason "fictitious settlement," after the owner proved the repair through an expert report; the purpose of storing the entry no longer applied (AG München, 29.03.2023 – 242 C 10592/22, as reported by a specialist law firm). A different division of the same court refused a deletion that same year: even after a proper repair, the fact remains that the vehicle had a non-negligible damage, and that must be disclosed when the vehicle is resold (AG München, 26.07.2023 – 322 C 3109/23, a comprehensive insurance case, reported for a fictitious settlement over €1,500).

Regardless of deletion: in our experience, insurers note a proven repair or partial repair in the HIS as soon as they receive confirmation of the repair. That way, a later inquiry will show that the reported damage was fully or partially fixed.

If a new accident affects the same area as an earlier damage, the other driver's insurer will check whether it should be paying for damage that already existed. They may find the earlier damage through the HIS. Then it's up to you: since you're the one claiming compensation, you have to show which damage resulted from the new accident.

The higher regional courts take a strict line here. If the new damage overlaps with prior damage, the injured party must explain and prove that the claimed damage — in whole or in a distinguishable part — resulted from the new accident; if they know about the prior damage, they must already tell the damage assessor truthfully what prior damage existed and how it was repaired (OLG Hamm, 04.02.2022 – 9 U 155/21). The Cologne Higher Regional Court dismissed a claim entirely because it wasn't proven that prior damage had been properly and correctly repaired — even though the injured party themselves didn't know about it (OLG Köln, 21.01.2021 – 15 U 164/19).

However, the Federal Court of Justice has limited how much must be argued. Section 287 of the Code of Civil Procedure (ZPO) makes it easier for the injured party not just to prove their case but also to present it; they may even claim that prior damage was properly repaired without having direct knowledge, as long as they have grounds to believe so (BGH, 15.10.2019 – VI ZR 377/18). Whether old and new damage can be separated is a matter for the evidence, not the initial argument (BGH, 30.07.2024 – VI ZR 122/23).

In practice, this means: if you know your car was settled on a fictitious basis, you're aware of the prior damage and must disclose it. Whether your claim succeeds then depends on whether you can prove what was repaired. Without an invoice or confirmation, that's difficult. With a repair confirmation and photos, you have evidence that a later report can also rely on.

A repair confirmation is issued by a vehicle expert, usually the same one who prepared the damage report. They inspect the repaired vehicle, compare its condition with the report, and confirm in writing which damage was repaired and how many working days the repair took, usually with photos. After a fictitious settlement, it replaces the workshop invoice as proof.

The Federal Court of Justice has ruled on who bears the cost: with fictitious settlement, the cost of a repair confirmation is not reimbursable on its own. It can be different if the confirmation is legally required for the settlement, for example as proof that you were deprived of use, if loss-of-use compensation is also claimed (BGH, 24.01.2017 – VI ZR 146/16). That case involved €61.88. Loss-of-use compensation also requires that you actually noticeably missed the vehicle during the repair (BGH, 23.01.2018 – VI ZR 57/17).

The confirmation is still worthwhile, even if you pay for it yourself:

After a fictitious settlement, you may repair only part of the damage, or none at all. The repair confirmation then documents exactly what was done, and nothing more. Anything listed in the report but missing from the confirmation remains an unrepaired prior damage. If you're in another accident in that same area later on, you have to expect that these items won't be reimbursed, or that there will be a dispute over how to separate the damages.

With a complete repair carried out according to the report's specifications, the situation is simpler: the confirmation then proves that the prior damage was fully and properly repaired. That's exactly what courts require when insurers raise the prior-damage objection. Timing matters: have the repair confirmed while it's still fresh and the new parts are visible. Years later, after another accident, it's hardly possible to make up for this.

Buyers and dealers can't query the HIS database. That doesn't change your duty to disclose accident damage. Under long-standing case law, a seller must disclose known accident damage even without being asked — the only exception being truly minor damage, meaning very slight cosmetic paint scratches, but not other sheet-metal damage (BGH, 03.03.1982 – VIII ZR 78/81). An accident that goes beyond minor damage counts as a defect of the vehicle, even if it was professionally repaired (BGH, 10.10.2007 – VIII ZR 330/06).

A warranty exclusion in a private sales contract offers no protection if a defect was concealed in bad faith (§ 444 BGB). For dealers, there's an additional rule: they don't have to inspect a vehicle in full, but they must carry out a professional visual inspection (BGH, 15.04.2015 – VIII ZR 80/14).

As a seller, this means: disclose the accident damage and provide proof of what was repaired. The repair confirmation is the right document for that. A partially repaired damage must be described as such; the confirmation shows which part was fixed and which wasn't.