The car sales contract often leads to problems in legal practice, as legislation and jurisdiction in sales contract law, and thus also in car sales, are subject to constant change. Withdrawal is subject to certain conditions.
–> by florian wehner – published on 5. December 2021
category: car purchase, purchase contract, traffic law, contract law
If one would like to resign from a car purchase, there are therefore some conditions to consider. Please also refer to our article on rescinding a car purchase on the internet.
With a rescission of the car purchase contract, the reversal of the car purchase contract – i.e. the return of the car against repayment of the purchase price – is to be achieved. However, the withdrawal does not constitute a "right of return" for the buyer; as explained in our general article on the withdrawal from the purchase contract, such a right of return does not exist. In fact, the following prerequisites must be fulfilled:
1. existence of a significant defect in the vehicle
Withdrawal from a vehicle purchase contract for a used or new car is only possible if there is a significant defect in the vehicle. A defect exists if the vehicle does not have the agreed quality. The defect must be so significant that it is unreasonable to simply accept it.
This is not the case if the fitness for use of the vehicle is only slightly impaired or the defect can be remedied by the buyer himself without great effort. Such a defect is insignificant. When a defect is to be classified as insignificant minor damage is often the cause of disputes and is clarified in court proceedings by means of an expert opinion.
Another prerequisite is that the defect must already have existed at the time of purchase. In the case of complaints, dealers therefore like to claim that the vehicle only "broke down" later. However, this does not help you, since in the first six months it is always assumed that a defect was also purchased – the seller must therefore be able to prove the opposite. This "reversal of the burden of proof"According to a decision of the Federal Court of Justice (BGH), this also applies to bodywork damage that was not apparent at first glance (BGH, decision of 14 March 2009). 9. 2005, VIII ZR 363/04).
2. Setting a deadline for rectification
If, after the purchase, the buyer discovers a defect that he or she considers significant, he or she must take the following steps for an effective rescission:
First, he must notify the seller of the defect. This must be done without delay – i.e. regularly within 14 days of knowledge.
Then, according to the rules of warranty law, the seller must first be given the opportunity to eliminate the defect; he therefore has a right to so-called "remedy" rectification. For this purpose, the buyer must give the seller a reasonable period of time to remedy the defect or to provide a vehicle of equal value. The appropriateness of the time limit is determined by the individual case; in any case, the seller must be given enough time to actually remedy the defect. Only if a second repair attempt fails or the seller seriously refuses any repair or replacement, the buyer can declare the withdrawal from the purchase contract.
Alternatively, instead of rescinding the contract, the purchaser may Reduce purchase price. The reduction in value is based on the costs incurred to remedy the defect and the resulting reduction in the value of the car.
3. Declaration of withdrawal
If the buyer decides to withdraw from the purchase contract, he must declare this withdrawal. For this purpose, the buyer must make it unmistakably clear to the seller that he no longer wishes the purchase contract to be fulfilled, but that he wishes to trigger the consequences of the rescission, i.e return the vehicle for a refund of the purchase price. it is advisable to declare the rescission in writing and to have the seller confirm the receipt with the date.
The buyer is entitled to a refund of the purchase price after the effective cancellation of the contract. He may also claim compensation for his necessary expenses incurred in connection with the purchase of the vehicle. These are, for example, the costs for new tires because the old ones were no longer roadworthy. Therefore, it is advisable to keep the purchase receipts in order to be able to prove the costs incurred.
However, the usual maintenance costs for inspection or signs of wear and tear are not compensable.
when selling a new car to a consumer, a commercial car dealer has a warranty of two years to note. this warranty period can be halved when a used car is sold, so that the right of rescission is usually shortened to one year.
4. Buying from private
If the car was purchased from a private seller, the seller can even exclude the warranty liability completely in the purchase contract. The vehicle is purchased as the buyer has test-driven and inspected it.
Only if the private seller has given a guarantee for a certain characteristic or has fraudulently failed to disclose a defect, the buyer can declare the rescission of the purchase contract in addition to the reduction claim. However, the buyer has the burden of proof for this, so that he has to prove the warranty or the fraudulent intent. Therefore, it is strongly recommended to always seal a vehicle purchase with a written sales contract that includes the essential characteristics of the vehicle and warranty statements on warranted features. Otherwise, the buyer should at least take along a companion who can be available as a witness in the event of a dispute.
5. Special case: fraudulent
When a seller acts fraudulently, i.e. deliberately conceals a defect, must be considered on a case-by-case basis: although the seller does not always have to disclose everything unfavorable about the vehicle for sale, he must disclose all defects that are essential for the purchase decision. The German Federal Supreme Court has ruled that a car buyer is entitled to warranty claims even if the seller has not reported accidental damage, e.g., a defect in the car.B. By the wording "accidental damage lt. previous owner: "no", denied, although the car actually has accident damage. If the seller was aware of accidental damage – regardless of whether he caused it himself or was informed of it by a previous owner – he must inform the potential buyer of this fact. The fact that the vehicle is an accident vehicle is already a material defect that must be disclosed in this case. according to this case law, even when buying a used motor vehicle, the buyer can expect, in the absence of any other information, that the vehicle has not suffered any accident resulting in more than minor damage (BGH, judgment of 12.03.2008, VIII ZR 253/05).
In the above-mentioned decision, the Federal Court of Justice (BGH) states that "minor damage" to passenger cars is "only very slight external (paint) damage", "but not other (sheet metal) damage, even if it had no further-reaching consequences and the repair work was only minor; whether the vehicle was repaired professionally after the accident is not important" (see also BGH, judgment by default of 10 September 2008).10.2007, VIII ZR 330/06).
Other common misstatements include the mileage, the year of manufacture or the date of first registration. According to case law, such information about the vehicle is material information that influences the purchase decision if it deviates significantly from the actual values. The buyer may expect truthful information here.
In the event of fraudulent intent, the seller cannot invoke either an exclusion of liability or a shortened limitation period. The regular limitation period applies, so that a defect only becomes statute-barred after three years.
